Dec. 15 (Bloomberg) -- The focus of the debate over President Barack Obama’s health-care overhaul is already turning toward the U.S. Supreme Court, even though it may be years before the justices resolve the law’s constitutionality.
Advocates on both sides say the Supreme Court almost certainly will be the final word on the measure, relegating a federal judge’s ruling against the law this week to a footnote. The judge said a provision requiring people to buy insurance or pay a penalty was unconstitutional.
Far less clear is how the law will fare before a high court that has five Republican appointees and four Democrats. No precedent directly controls the case’s outcome, and the justices’ opinions in other contexts only hint at how they would view the so-called individual mandate. The justice most often in the court’s middle, Anthony Kennedy, has signed opinions pointing in both directions.
“The ultimate outcome of this case is really up for grabs,” said Jonathan Adler, a professor who runs the Center for Business Law and Regulation at Case Western Reserve University’s law school in Cleveland and who has argued the law is unconstitutional. “We don’t have much precedent that speaks directly to this question, and several of the justices have no real track record on this type of issue.”
The Justice Department said yesterday it will appeal U.S. District Judge Henry Hudson’s ruling to a Richmond, Virginia-based federal appeals court. Virginia Attorney General Ken Cuccinelli, whose challenge to the law led to Hudson’s ruling, had urged the Obama administration to appeal directly to the Supreme Court to expedite the case.
Hudson, appointed by Republican President George W. Bush, said the individual mandate exceeded Congress’s powers, rejecting the Justice Department’s contention that Congress acted within its authority to regulate interstate commerce and levy taxes. Two other federal judges have upheld the provision, and a third will hear arguments this week on a suit by 20 other states. Hudson left the rest of the health-care law intact.
At the Supreme Court, opponents will have to overcome a high historical hurdle: The court hasn’t invalidated a federal program of comparable size since striking down much of President Franklin Roosevelt’s New Deal in the 1930s. That fact alone gives backers of the measure reason for hope.
“I just can’t see this court going back and once again having five justices regulating what can be done with the national economy,” said Walter Dellinger, who served as President Bill Clinton’s top Supreme Court attorney and is now a Washington lawyer with O’Melveny & Myers LLP.
Breaking New Ground
Critics say the health plan is unlike anything the Supreme Court has ever approved because it would require people to take action: either buy health insurance or pay a fine. Hudson said no Supreme Court or appeals court ruling authorizes Congress to “compel an individual to involuntarily enter the stream of commerce” by buying something.
The Supreme Court’s broadest reading of the commerce clause may have come in 1942, when it let Congress regulate wheat grown by a farmer for home consumption. The court said that, while the farmer’s impact on the interstate market might be trivial, “his contribution, taken together with that of many others similarly situated, is far from trivial.”
More recent cases have imposed limits. The court in 1995 voided a federal law aimed at restricting guns near schools, then followed up in 2000 by overturning a law that let female victims of violence sue their assailants.
In both cases, a 5-4 majority faulted Congress for attempting to regulate what the court said was essentially non-economic activity -- carrying a firearm in one case and engaging in gender-motivated violence in the other.
The court shifted course in 2005, voting 6-3 to allow prosecutions under federal drug laws for marijuana that is grown and used locally for medicinal purposes. The court said Congress, in regulating a national market, can also set rules for related local transactions. The majority pointed to a constitutional provision letting Congress enact laws “necessary and proper” for carrying out its other powers.
Kennedy was in the majority in all three of those cases, revealing a nuanced view toward congressional power. He was also in the majority this year in a case that interpreted the “necessary and proper” clause in a different context. The 7-2 ruling upheld a federal law allowing civil commitment of “sexually dangerous people” whose federal prison terms expired.
Kennedy wrote separately in the civil commitment case to say congressional power “must be controlled by some limitations test.”
“He’s uneasy with striking down federal legislation on federalism grounds,” Adler said. “Then again, we have not seen anything as aggressive as this, and he also is particularly sensitive to infringements upon individual liberties.”
Four other members of the court -- Chief Justice John Roberts and Justices Samuel Alito, Sonia Sotomayor and Elena Kagan -- have never directly considered a challenge to Congress’s commerce clause powers.
Roberts and Alito, both Republican appointees, have hinted they would limit that authority. In a 2006 case they voted to narrow the Clean Water Act, saying it applies only to wetlands with a close connection to a major waterway. Both joined an opinion by Justice Antonin Scalia, who said broader application would raise constitutional questions.
Kagan and Sotomayor, both Obama appointees, have even less of a record. “We don’t have anything to go on other than our general assumption of what liberal justices would do in such a case,” Adler said.
The Obama administration says it’s confident the measure will be upheld. The administration argues that the individual mandate is essential to the law’s goal of increasing health-care availability and affordability.
The government says that, without such a rule, people could forgo buying insurance until they became sick, at which point the new law would require insurers to provide coverage. That would drive up costs and eventually drive insurers out of business, the administration says.
“All of us need health care eventually,” Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius said in a Washington Post op-ed piece yesterday. “Do we pay in advance, by getting insurance, or do we try to pay later, when we need medical care?”
Cuccinelli says that approach has no bounds.
“If the government can order you to buy health insurance, they can order you to buy a car, to buy asparagus,” the Republican said. “The power is expandable almost without limit if this is allowable and constitutional.”
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