Is President Obama’s Health Care Vision Destined for the Supreme Court?

Will the Supreme Court Judges have a difficult decision to make?

As twenty-six state attorneys general have filed a lawsuit against the Affordable Care Act, lower-court rulings have broken entirely along party lines, and appellate courts disagree without regard for party politics, it looks like the health care debate will run all the way to the Supreme Court — and what a flight it will be.

The plaintiffs’ argument hinges on the constitutionality of the individual responsibility provision.  The argument is as follows: requiring the majority of Americans to buy coverage by 2014 (or face a tax penalty) is an unconstitutional congressional intrusion.

The constitutional argument here is based on the limitations of the commerce clause (Article I, Section 8, Clause 3) that, as opponents of the bill argue, gives Congress only the power to regulate interstate trade, not to compel it.

In the most recent ruling last week by the 11th Circuit Court of Appeals in Atlanta, the majority wrote that the “mandate represents a wholly novel and potentially unbounded assertion of congressional authority.” The law requires “Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives.”

The response from the government has not only been to declare the personal mandate constitutional, but also to claim that it is in fact the linchpin of the entire statute. They argue that adding younger and healthier people to the pool of the insured population makes the program more viable for insurers.

In his dissent, U.S. Circuit Judge Stanley Marcus said that “by ignoring the close relationship between the health insurance and health care services markets, the plaintiffs and the majority seek to avoid the hard fact that the uninsured as a class are actively consuming substantial quantities of health care services now — not just next week, next month, or next year,” making them active participants in interstate commerce subject to federal regulation.

When the Cincinnati-based U.S. Court of Appeals upheld the individual mandate at the end of June, U.S. Circuit Judge Jeffrey Sutton became the first Republican-appointed judge to back the law in litigation across the country.  In his commonsense majority ruling, Judge Sutton explained that  “not every intrusive law is an unconstitutionally intrusive law.”

The next opinion is expected shortly from the Fourth Circuit in Richmond, Va. but, being that two appellate courts are in disagreement, it seems quite likely that Supreme Court will take on the case. With a decision expected by June 2012, it will be just in time to propel health care to the center of the 2012 presidential race debates.

In the worst case scenario for President Obama, the Affordable Care Act will be entirely invalidated.  But were the act to become law without the central provision currently under scrutiny, it would cease to be the vision for universal health care that existed in the dreams of its creators and supporters.  As supporters argue, losing its essential funding, the bill would instead come to resemble a large and unwieldy piece of broken machinery with no hope of receiving the oil it needs to run properly.