Since its passage in 2010, the Obama administration’s sweeping health care overhaul has been wrangled over in the media and in the courts. Now ObamaCare will face a reckoning before the nation’s highest court. After much anticipation, the Supreme Court on Monday agreed to consider a challenge to the law brought by 26 states. The hearing, scheduled for March, promises to be a tough test for the legislation, starting with a showdown over its central and most polarizing provision: the so-called individual mandate to purchase health insurance.
At issue is whether Congress has the constitutional power to compel individuals to purchase health insurance and to force them to pay a penalty if they refuse. Opponents insist that it does not. They argue that the mandate is a flagrant violation of individual liberty and that in passing it Congress has exceeded its authority to regulate interstate commerce. Endorsing that view are several state court decisions. In 2010, a Virginia court ruling struck down the mandate provision of the law. Florida’s Federal District Court followed suit last January, finding both the mandate and the health care law unconstitutional. Most recently, this August a U.S. appeals court in Atlanta ruled that the mandate was unconstitutional.
Despite those defeats, the Obama administration has not backed down. For the administration, the mandate is the cornerstone of the health care bill. Without the mandate’s forcing Americans to purchase insurance, for instance, it would be difficult to sustain other provisions of the law, among them provisions that insurance companies accept all applicants and disregard pre-existing conditions. As such, the mandate is the key to the administration’s vision of “universal” health care coverage. Never mind that even with the mandate, the legislation will still not achieve universal coverage, since 23 million will remain uninsured. Nonetheless, given the centrality of the mandate to the bill, it’s not surprising that the administration is determined to fight to keep it.
It could not have dented the administration’s confidence in prevailing in this fight that last week a respected conservative judge in the U.S. Court of Appeals for Washington D.C. ruled to uphold the mandate. In a curiously defended decision, Laurence Silberman, a Reagan appointee who authored the 2008 decision that ended Washington’s D.C.’s gun ban, ruled that while the individual mandate “certainly is an encroachment on individual liberty,” it is nonetheless constitutional. Silberman likened the mandate to “a command that restaurants or hotels are obliged to serve all customers regardless of race.”
As critics were quick to note, this was a strange argument. Among other issues, the health care law was not forcing businesses to sell a product, but rather forcing customers to buy one – a government intrusion that many have described as unprecedented. Indeed, such reasoning, if accepted, potentially opened up the prospect of unlimited government power to direct commerce. Silberman’s colleague on the D.C. court, justice Brett Kavanaugh, raised that troubling possibility. In his dissenting opinion, Kavanaugh pointed out that if this reasoning was valid there was nothing to stop Congress from requiring “mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance” too.