Supreme Court's review of 'Obamacare' could ignite election-year fireworks

McClatchy NewspapersNovember 14, 2011 

WASHINGTON — The Supreme Court's announcement Monday that it will consider multiple challenges to the Obama administration's health care law next year sets the stage for a legal and political blockbuster.

The law's aggressive expansion of Medicaid and the imposition of an individual health insurance mandate will both be examined, right in the middle of what's expected to be an overheated campaign season. Justices also will consider whether the law can survive even if certain provisions are knocked out.

Underscoring the high states, the justices set aside an extraordinary five and a half hours for the arguments next year, compared to the usual hour-long oral argument.

"We know the (law) is constitutional and are confident the Supreme Court will agree," White House Communications Director Dan Pfeiffer said.

With nearly the same confidence, Republican Sen. Orrin Hatch of Utah, a senior member of the Senate Judiciary Committee, proclaimed that the court's decision "is a big step towards restoring liberty and limits on government" under the Constitution.

"We are hopeful that by June 2012 we will have a decision that protects Americans' and individuals' liberties and limits the federal government's power," Florida Attorney General Pam Bondi said. The justices combined Florida's challenge with a separate one filed by the National Federation of Independent Business.

The court's nine justices followed their usual practice Monday in not commenting upon their decision to hear the health care case. At least four of the justices had to agree to hear the case during a closed-door session held Thursday.

The court's top-to-bottom examination of the law will start with the threshold question of whether the legal challenges are premature and should be postponed until more of the law takes effect in 2014.

If the justices overcome this first hurdle, they will consider whether certain provisions can be severed from the overall law, or whether the entire edifice collapses if certain provisions are deemed unconstitutional. The overall bill exceeded 2,400 pages when it passed Congress.

"If the mandate is declared unconstitutional, the insurance reforms ... will not work well," said Paul Ginsburg, president of the Center for Studying Health System Change, an independent research group.

As a result, Ginsburg said, "there is a risk that the Supreme Court could remove much of the legislation that applies to private insurance, or it could just remove the mandate and leave it to Congress to figure out how to adapt."

Substantively, the court will focus on two main provisions. One is whether Congress exceeded its constitutional authority when it included the "individual mandate" in the Patient Protection and Affordable Care Act.

Under the individual mandate, nearly all individuals must either be covered by health insurance or pay a fee.

A new poll suggests that the mandate is increasingly popular. A CNN/ORC International poll, conducted Nov. 11-13, found 52 percent of those questioned approved of mandatory health insurance, while 47 percent are opposed. In the June poll, 44 percent approved and 54 percent disapproved.

The court, surprising some, also announced that it will consider a challenge to the law's expansion of Medicaid coverage. The law requires states to cover residents with higher incomes and also establishes new minimum coverage levels. If states don't comply, they will lose their federal Medicaid funds.

"The law passes the point at which pressure turns into compulsion and achieves forbidden direct regulation of the states," Paul Clement, an attorney representing Florida and 25 other states, declared in a legal filing.

The federal law has been in effect since March 2010 and has dozens of provisions. Many are already in operation, including federal help for community health centers, tax breaks for small businesses that offer employees health insurance and allowing dependent children up to age 26 to stay on their parents' policies.

Starting in 2014, the law's individual mandate covers nearly everyone living in the United States except illegal immigrants, prisoners and some people with religious exemption. Those without insurance will pay a penalty on their tax return, pegged to their annual income.

The health care mandate alone will ensure that about 16 million additional U.S. residents will be covered by health insurance, according to the Congressional Budget Office. Opponents, though, say the requirement violates the Commerce Clause of the Constitution, which both empowers and constrains Congress.

The clause grants Congress the authority to "regulate commerce ... among the several states." This also means, though, that the clause withholds power from Congress if something isn't commerce. The coming Supreme Court fight will revolve around what category the individual insurance mandate falls into.

The 11th U.S. Circuit Court of Appeals, covering Florida and other Southern states, struck down the individual mandate. But other courts, including a conservative-led panel of the D.C. Circuit Court of Appeals last week, have concluded that Congress was within its Commerce Clause rights.

"Congress determined that decisions about whether and when to purchase health insurance, and how to pay for health care services, are inherently economic," Judge Laurence Silberman wrote for the D.C. Circuit.

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