A second federal judge has declared the Patient Protection and Affordable Care Act unconstitutional, ruling that people can't be required to buy health insurance. David A. Hyman, a professor of law and of medicine at Illinois, is one of the nation's top health law scholars. He spoke with News Bureau reporter Phil Ciciora about the ongoing legal troubles facing President Obama's signature piece of legislation, and what's likely to happen next.
What does the latest court ruling mean for the health care reform law? In the interest of settling the constitutionality of the law once and for all, should the parties seek an expedited review by the Supreme Court?
As of right now, two district courts have upheld the Patient Protection and Affordable Care Act in its entirety. One district court in Virginia has struck down just the individual mandate, and another in Florida has issued a declaratory judgment that the entire statute is unconstitutional. It concluded the individual mandate was unconstitutional, and not separable from the rest of the law.
Although it is possible that all of these cases will be conclusively resolved by the various intermediate courts of appeals, it now seems likely that the Supreme Court will have to sort out the issue.
As far as timing, the state of Virginia, which was the plaintiff in the case where the district court struck down just the individual mandate, has indicated that it wants immediate review, but so far the Department of Justice has opposed doing so. It is possible that the DOJ will seek a stay of (U.S. District) Judge (Roger) Vinson's ruling in the Florida case, in order to keep implementation on track.
Critics of Vinson's ruling have said that it was based more on a desire to restrain federal overreaching than in commerce clause precedents. They also note that many of America's landmark governing achievements - Social Security, the Civil Rights Act of 1964, the federal minimum wage - were challenged in lower courts before being upheld by the Supreme Court. Are they right? If this case were to reach the Supreme Court, what do you foresee happening?
The Constitution limits the federal government to specific enumerated powers. Congress relied on the commerce clause, which allows the federal government to regulate commerce "among the several states." Most law professors were confident that this challenge to the health care reform act would go absolutely nowhere, since federal courts had historically upheld legislation regulating economic activity under the commerce clause. But the plaintiffs creatively cast the act as regulating inactivity, and argued that if the government could regulate inactivity, it could regulate everything, which would be inconsistent with the limitation of the federal government to specific enumerated powers.
Everything about health reform has been unpredictable, so the safest thing is to predict more of the same. The betting right now is that it would be a 5-4 decision, with Associate Justice Anthony Kennedy casting the deciding vote. But Kennedy has been a swing justice, so it is hard to predict what he might do.
Ironically, if the act had been structured like Medicare, the constitutional challenge would be a non-starter, since there was clear precedent authorizing the use of the taxing power to enact such legislation. But there was never the political will or the votes to try to do anything like that.
In the two rulings that have declared the law unconstitutional, the linchpin of the ruling has been the constitutionality of the individual mandate. How is the constitutionality of the individual mandate any different from, say, the constitutionality of all drivers mandated to purchase some form of auto insurance?
Under the Constitution, the federal government is limited to specific enumerated powers, while the states have more sweeping authority. So, states can require people to do things that the federal government can't. That's why when states impose a mandate to purchase auto insurance - or when, for example, Massachusetts imposes a mandate to purchase health insurance - it doesn't create any constitutional problems.
The auto insurance example raises some other interesting points. First, the auto insurance mandate requires drivers to purchase coverage. If you don't drive, you don't have to purchase coverage. You don't have a similar option with the health insurance mandate, which applies to all citizens.
Second, the auto insurance mandate requires drivers to purchase liability coverage, which protects other people. The health insurance individual mandate is to purchase coverage for yourself.
Third, the best available evidence indicates lots of drivers don't purchase auto insurance - even though it is cheaper, and the sanctions for noncompliance are far higher than for health insurance. That doesn't bode well for the effectiveness of the health insurance mandate as it is currently framed.
The federal government can also "bribe" states to get them to do what it wants, even though it lacks the power to do something directly. So, the reason why the minimum drinking age in all 50 states is 21 years old is not because the states all independently decided that was the right number.
It was because Congress passed a law that withheld a portion of federal highway funding to any state that failed to enact a minimum drinking age of 21. The Supreme Court upheld that strategy in 1987 - and the money at stake was large enough that the states all fell into line.
So, even if the individual mandate is ultimately held to be unconstitutional, the federal government could conceivably use the same approach to get all 50 states to enact a health insurance mandate.