The majority of the 50 states claim that Obamacare is unconstitutional, the Obama administration claims that it's not, and both sides have now asked the U.S. Supreme Court to decide the question on appeal from a 3-judge panel of the 11th Circuit Court. In August, the panel (made up of two Clinton appointees and one George H. W. Bush appointee) ruled that Obamacare’s individual mandate — its requirement that essentially every American buy government-approved health insurance under penalty of law — is unconstitutional but that the rest of the legislation should be allowed to stand. The 26 states that filed suit in the case have appealed, arguing that the individual mandate is so central to the legislation as a whole that to void the mandate, while retaining the rest, is to leave something in place that’s unworkable and which Congress almost certainly never would have passed. The Obama administration also has appealed, arguing that the powers vested in Congress by the Constitution authorize its passage of all aspects of the 2,700-page legislation.
The Court could presumably rule in any one of six ways:
1. It could decide not to strike down any part of the legislation, ruling that Congress was authorized to pass the individual mandate under its power “To regulate Commerce...among the several States.” (Not striking down legislation should not be confused with declaring it to be “constitutional.” The Court’s proper role is to void legislation if it violates “the manifest tenor” (the obvious meaning) of the Constitution — it should no more declare a law “constitutional” than a jury should declare a defendant “innocent”). Such a ruling would reverse the lower court’s ruling on the individual mandate.
If the Court does indeed rule in this manner, it will have stretched the commerce clause to establish, for the first time, that Congress can force Americans to buy a particular commercial good — and can dictate what form of that good they must buy. At the very least, this would be true for all goods that every American partakes of in some way, such as food.
2. It could decide not to strike down any part of the legislation, ruling that the individual mandate is not really a mandate but rather is a new tax (on those who don’t have insurance), which Congress was authorized to institute under its power “To lay and collect Taxes...to...provide for the...general Welfare.” The problem with this is that President Obama emphatically insisted on national television that the individual mandate “is absolutely not a tax increase.” Moreover, Obamacare’s text doesn’t refer to the mandate as a tax. As the 11th Circuit Court panel put it, “[T]he individual mandate...was not enacted pursuant to Congress’s tax power” and therefore cannot be sustained on those grounds.
3. It could affirm the lower court’s ruling, by holding that the individual mandate is unconstitutional and allowing the rest of the legislation to stand. The problem with this is that — as the Obama administration itself has argued — without the individual mandate, the legislation would become “cost prohibitive.” In fact, because of the legislation’s requirement that insurers cover those with preexisting conditions at the same premiums that healthier people pay, the White House says that “the only way to keep people from gaming the system and raising costs on everyone else is to ensure that everyone takes responsibility for their own health insurance” — and the way that the legislation achieves this is through the individual mandate.
In light of these White House comments, it seems somewhat farfetched to believe that a bill that overcame a filibuster with no votes to spare in the Senate, and which passed by only 7 votes in the House, would have passed either chamber with the individual mandate removed and everything else left in place.
4. The Supreme Court could declare the individual mandate unconstitutional and also void the law’s “guaranteed issue” and “community rating” provisions (provisions that, in tandem, would require insurers to cover all applicants without charging higher premiums to those with expensive preexisting conditions), while upholding the rest of the legislation. This is essentially how U.S. District Court judge Christopher Conner ruled. In the drafting of the legislation, these mandates were inextricably linked. Without the individual mandate, the requirement that insurers cover everyone with expensive preexisting conditions — without charging them higher premiums — would simply lead to people waiting until they are already ill or injured before signing up for “insurance” to pay for their care.
Again, this point has been made quite well by the White House: “If insurance companies can no longer deny coverage to anyone who applies for insurance — especially those who have health problems and are potentially more expensive to cover — then there is nothing stopping someone from waiting until they’re sick or injured to apply for coverage since insurance companies can’t say no. That would lead to double digit premiums increases — up to 20% — for everyone with insurance, and would significantly increase the cost [of] health care spending nationwide.”
It would seem that if the individual mandate is struck down, then the mandates requiring coverage of those with preexisting conditions (“guaranteed issue”) at the same premiums as everyone else (“community rating”) must be struck down as well.
5. It could strike down the individual mandate and the rest of the legislation along with it. U.S. District Court judge Roger Vinson ruled in this manner, arguing that since the individual mandate is “the keystone or lynchpin of the entire health reform effort,” upon its removal the entire act must be invalidated. Vinson wrote,
“[T]his Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which...were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress’ main purpose and primary objective in passing the Act.”
6. It could decide that the states lack legal standing to bring the suit at this time, thereby postponing challenges to Obamacare’s constitutionality until after the election and likely until after its full implementation (in January of 2014) — if it’s not repealed first.
Whichever way the Court rules, and by whatever vote, three things are important to remember:
First, while the justices have the final say on whether Obamacare will be treated as being unconstitutional or not, and while their judgment should be respected and observed, they have no claim to infallibility. In other words, no private citizen should feel compelled to yield to the rightness of the justices’ decision, only to its authority — an important distinction that Lincoln made clear in response to Dred Scott.
Second, as Chief Justice John Marshall said in McCulloch v. Maryland, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” In other words, the wisdom and the constitutionality of legislation are two distinctly different things, and Obamacare is an unprecedented threat to Americans’ liberty, the nation’s fiscal solvency, and the basic relationship between the government and the people — regardless of whether the Court rules that it is also unconstitutional.
Third, all but one of the six possible holdings by the Court (#5 — striking down the legislation in full) would still require a political resolution. In all likelihood, therefore, the fate of Obamacare will be determined not by a decision of the Court, but by the success or failure of the repeal movement — which in turn will likely be decided by the presidential election.