A second federal district judge has now ruled that the health care reform act’s mandate requiring individual Americans to purchase health care insurance is unconstitutional. That leaves a 2-2 stand-off among federal district judges over the mandate’s constitutionality. And not surprisingly, it tracks the same sort of partisan split over health care reform that Congress and polls of ordinary Americans have revealed.
Both of the two judicial rulings against the mandate, and the two in support of its legal viability, come from federal district judges appointed by Republican presidents on the side against it, and by Democratic presidents on the side for it. Likewise, the Obama administration’s appeals of these rulings will go up to appellate courts in the several judicial circuits that are also equally divided on a partisan basis.
That’s ominous. It underscores the possibility, if not the probability, that the current U.S. Supreme Court will make a similar decision at some point over the next two years when the lawsuits over the act are consolidated and sent its way.
Over the past 15 years, the five conservative judges have consistently used their bare 5-4 majority to come down on the conservative side in partisan controversies. There is scant reason to doubt such a outcome when the court ultimately rules on health care reform. The Supreme Court’s conservative majority has already stacked its votes that way in several conspicuous cases. It overrode state authority to settle its election disputes by seizing and settling Florida’s presidential election contest in 2000 in favor of a Republican; it has diminished environmental laws regulating water and mineral resources; it’s gone against long-settled Supreme Court precedents to give corporations unchecked rights to spend without restraint and in secrecy in our elections; and its trampled settled precedents to broadly expand gun-bearing rights under the Second Amendment.
Given this record of deeply troubling judicial activism in favor of Darwinian conservatism, it seems quite possible that the Supreme Court ultimately might seriously impair, if not dismantle, the first successful attempt at a national health care policy in our nation’s history.
For the former, the court could rule that the act’s reliance on the Commerce Clause as the foundation for a mandate for individuals to purchase insurance is unconstitutional, as the two conservative federal district judges have ruled. Or it could go further, setting aside the common legal standard of severability that would leave the rest of the act intact, and rule that a flawed mandate alone provides grounds to undo the entire health care reform act. That is what Federal District Judge Roger Vinson ruled in the decision issued Monday.
There’s no question that the mandate to purchase insurance is integral to the viability of the reform legislation. It is necessary to create the large insurance risk pools that make broad-based insurance economically feasible, and also to prevent so-called free-riders, who would wait until they are ill to purchase insurance.
Proponents of the reform act argue that the Constitution’s Article 1 Commerce Clause would cover the mandate because it is elemental to the interstate insurance exchanges that would provide citizens insurance options. It also could be formulated to become a penalty for those who fail to purchase, which would eliminate the perceived issue of imposing a burden to purchase insurance on an otherwise passive citizen.
The plaintiffs in the lawsuit before Judge Vinson — governors and attorneys general in 26 states, all but one of them Republicans, and the National Federation of Independent Business — claim the mandate is unconstitutional because individuals may not be required to engage in commerce, that is, to purchase health insurance under the purview of the Commerce Clause.
In any case, the opposition to the reform act is transparently partisan and senseless given the nation’s health care crisis. Republicans should be wanting to relieve the core issue: the fragility and uncertainty of insurance for individual Americans, absent reform, when they are forced to confront a medical crisis. If reform is killed, insurers will rush back to the bad old days of denying insurance for pre-existing conditions, of canceling coverage when it becomes expensive, of capping annual and lifetime coverage, and of spending too much premium revenue on soaring executive salaries and management overhead.
America cannot prosper when insurance and health care are unaffordable and unattainable for scores of millions of Americans, and their numbers are steadily increasing. That’s the problem that Republican opponents should tackle. With their help, rather than their hindrance, the health care crisis could be solved.