The Mandate's Supreme Jeopardy
By Betsy McCaughey
NYPost.com
Sparks flew in the US Supreme Court yesterday, as lawyers for and against the Obama health law’s individual mandate argued over whether there are limits on what the federal government can compel Americans to do or to buy.
Defenders of the law say making insurance compulsory will solve a national problem by reducing the number of uninsured and spreading the cost of care. Critics say the requirement tramples the Constitution, converting the federal government’s limited powers into unlimited control over life and property.
As Justice Samuel Alito asked, what is to stop Washington from compelling you to buy a burial plot? Or, as others have asked, a GM car to rescue Detroit? Or stocks and bonds to prop up Wall Street?
The justices repeatedly interrupted one another and shot off rapid-fire questions to the lawyers. Virginia Attorney General Kenneth Cuccinelli called it “a very hot bench.”
The Supreme Court is the final battleground in a two-year legal war. The first shot was fired when the state of Florida filed a lawsuit 10 minutes after President Obama signed the Patient Protection and Affordable Care Act into law on March 23, 2010. Twenty-five states and several other parties eventually joined.
The states won when Judge Roger Vinson of the federal district court in Tallahassee struck down the mandate on Jan. 31, 2011. He reprimanded the government’s attorneys for failing to show any limit on federal power if the mandate were upheld. No limit means no liberty, said Vinson.
The 11th Circuit Court of Appeals upheld his core ruling in August, leading to this week’s high court showdown.
The Obama lawyers argue that all Americans consume health care and therefore are engaged in health care commerce, so Congress can use its Commerce Power to force them to buy insurance. But the justices repeatedly asked about healthy and young people who aren’t consuming health care: Is the new law forcing them into commerce so it can regulate them?
The government’s chief lawyer, Solicitor General Donald Verrilli Jr., stammered and haltingly said no.
Justice Anthony Kennedy, widely seen as the swing vote, commented rhetorically that allowing the mandate would fundamentally change the relationship between the federal government and the individual.
He’s right. ObamaCare does more than require you to enroll in a health plan — it also puts the federal government in charge of your doctor once you are in the plan.
Sec. 1311 of the law says approved plans can pay only doctors and hospitals that follow whatever regulations the federal government imposes in the name of “quality.” That could mean everything — when your cardiologist recommends a stent, or your ob/gyn does a Cesarean.
In 2008 the Supreme Court ruled 6-3 against a Bush administration attempt to dictate how Oregon doctors treated certain patients because it “would affect a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality.” Yet the Obama law does just that.
If the mandate or the law’s Medicaid expansion is declared unconstitutional, the entire health law could collapse. The authors of this law omitted the usual boilerplate statement that if one provision is struck down, other parts remain enforceable.
Judge Vinson compared the law to a complex timepiece: If one part doesn’t work, none will. Today the court will consider whether some parts of the law can stand if others are struck down.
Even before the law was passed, a reporter asked then-Speaker Nancy Pelosi if it was constitutional for Congress to require Americans to buy health insurance. She responded, “Are you serious?” This week’s drama provides the answer.
More than half the states are asking the justices to do what Congress failed to do: Apply the Constitution
Betsy McCaughey is the author of the new e-book “DeCoding the Obama Health Law: What You Need to Know.”