Health Reform: About That Individual Mandate Decision...
The big news today, of course, is that the 11th Circuit Court of Appeals ruled as unconstitutional the individual mandate to buy health insurance that is the centerpiece of the 2010 federal health reform law. (In a less publicized ruling, the 9th Circuit Court of Appeals upheld a lower court's decision to throw out another legal challenge to health reform, saying the plaintiffs lacked standing.)
The 11th Circuit ruling is a clear victory for the 26 states that sued to challenge the law's constitutionality. The decision upholds part of a previous ruling by Florida district judge Roger Vinson that found both the mandate and the entire law unconstitutional. However, the 11th Circuit, based in Atlanta, did not void the entire Patient Protection and Affordable Care Act, just the individual mandate.
Another federal appeals court, the 6th Circuit in Cincinnati, previously ruled that the mandate is constitutional, and another ruling is expected from the 4th Circuit Court of Appeals in Richmond, Va. And so the stage is set for a Supreme Court showdown in 2012.
Here are some highlights of what's sure to be a tsunami of media coverage starting today and continuing through the weekend:
Jonathan Cohn, writing in the New Republic, quotes legal writer Jeffrey Toobin as saying the near-certain Supreme Court showdown will be "the biggest case since Bush v. Gore."
The Associated Press' Greg Bluestein highlights a "little known fallback" if the individual mandate is struck down by the Supreme Court:
The government can borrow a strategy that Medicare uses to compel consumers to sign up for insurance. Medicare's "Part B" coverage for doctor visits carries its own monthly premium. Yet more than nine in 10 seniors sign up. The reason: Those who opt out when they first become eligible face a lifelong tax penalty that escalates the longer they wait. The key difference is that the Medicare law doesn't require that seniors buy the Part B coverage. Experts say Obama's overhaul could also be changed in a similar fashion.
For in-depth legal analysis of the 11th Circuit Ruling, turn to Kevin Outterson's post at the Incidental Economist blog, where he notes that the mandate was overturned "because the U.S. government, in asserting its power to compel Americans to buy health insurance, couldn't convince the court that it had "a constitutionally relevant way to distinguish health insurance" from other products, like broccoli.
Finally, if the Supreme Court tosses out only the individual mandate, Ezra Klein writes for the Washington Post, Congress would have to decide whether to do nothing, repair or repeal the health reform overhaul. He points out:
No sweeping legislation survives first contact with reality unscathed, and the Affordable Care Act will be no different. If the law is to be successful, Congress is going to have to be willing to revise, rework and reform it over time. If Republicans refuse to allow such updates, but also find themselves unable to muster the votes for repeal, we will be stuck with a policy that is never quite allowed to succeed and never quite forced to fail.