The Patient Protection and Affordable Care Act (PPACA) continues to wind its way through the court system with more appellate reviews. In the latest round three federal appeals judges expressed unease with a requirement that virtually all Americans carry health insurance or face penalties.
The three judges on the 11th Circuit Court of Appeals panel in Atlanta raised several questions on whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates. The judges did not immediately rule on the lawsuit brought by 26 states, a coalition of small businesses and private individuals who urged the three to side with a federal judge in Florida who struck down the law.
The pointed questions about the so-called individual mandate during almost three hours of oral arguments,The Insurance Journal reports, suggest the panel is considering whether to rule against at least part of the federal law.
Federal appeals courts in both Cincinnati and Richmond have heard similar legal constitutional challenges to the law recently, and lawyers on both sides agree the case is headed for the U.S. Supreme Court eventually. When those hearings will actually occur may wait until late 2012 or later.
The primary issue in the Atlanta hearing was a ruling by U.S. District Judge Roger Vinson of Florida to invalidate the entire law, from the Medicare expansion to a change that allows adult children up to age 26 to remain on their parents’ insurance. The government contends that the law falls within its powers to regulate interstate commerce.
Chief Judge Joel Dubina, who was tapped by Republican President George H.W. Bush, struck early by asking the government’s attorney “if we uphold the individual mandate in this case, are there any limits on Congressional power?” Circuit Judges Frank Hull and Stanley Marcus, who were tapped by Democratic President Bil Clinton, echoed his concerns later in the hearing.
Analysis
That is an important question as the judicial branch's role is to be a check against legislative and executive excess. If for example, the Supreme Court rules that the individual mandate is constitutional, some are concerned that would set a precedent that Congress can force citizens in to numerous purchases or requirements such as auto or homeowner's insurance (required in some areas and instances) or other more invasive requirements like inserting medical records microchips as some have suggested be done in the past.
The appeals court panel, which did not indicate when it would rule, has several options. But Judges Hull and Dubina asked the lawyers on both sides to focus on a particular outcome: What could happen to the overhaul, they asked separately, if the individual mandate were invalidated but the rest of the package were upheld?
Parts of the overall law should still survive, said government lawyer Katyal, but he warned the judges they’d make a “deep, deep mistake” if the insurance requirement were found to be unconstitutional. He said Congress had the right to regulate what uninsured Americans must buy because they shift $43 billion each year in medical costs to other taxpayers.
Lawyers for the states, however, argued that the insurance requirement is the “driving force” of the broader package, which he said violates the Constitution’s legitimate authority. Without it, he said, the rest of the package should collapse.
So far, three Democratic-appointed federal judges have upheld the health care law and two Republican-appointed judges, including Vinson, have ruled against it.
Wednesday’s arguments unfolded in what’s considered one of the nation’s most conservative appeals courts. But the randomly selected panel represents different judicial perspectives. None of the three are considered either stalwart conservatives or unfailing liberals.
Its possible that judges may see the Medicaid expansion and other components as separate from the individual mandate and simply toss out that portion. So then what will the Supreme Court do?
2012 Election and the PPACA
Hypothetically, let's say the Supreme Court rules in early 2012 that the individual mandate is unconstitutional but most of the rest of the PPACA remains intact. The PPACA then becomes even more of a campaign issue in the Fall 2012 presidential and congressional elections because of five arguments candidates will make:
- 1. Throw the rest of the PPACA out and start over.
- 2. Keep the remaining PPACA as is.
- 3. Revise the PPACA with potetnially a myriad of "fixes".
- 4. Some candidate will likely propose adding the public option again to the PPACA (discarded during PPACA debate in 2009) as an antedote to the individual mandate's unconstitutionality... or
- 5. Discard the PPACA and replace it with a single payer system such as Medicare for all.
Seriously, I could see all of this happening, and the debate would likely be maddening.
