Health Insurance Blog

Healthcare reform is a very controversial issue. Much of the conflict comes from the health insurance mandate, which requires that everyone with earnings over a certain income level either buy health coverage or pay a fine. Supporters think that doing so is necessary to get a higher percentage of healthier policyholders in the fold, leading to more affordable health insurance. Opponents, on the other hand, believe that it is an unconstitutional violation of states’ rights.

Legal experts are conflicted on how the mandate issue will play out. The commerce clause of the Constitution allows the federal government to regulate interstate commerce. The Obama administration and Democrats in Congress no doubt had analysts poring over the legislation in order to avoid having it revoked after a bruising political battle. They knew that the Republican party would be looking to poke holes in its logic, so their legal argument would presumably be air-tight. For example, they refer to the penalty as an excise tax, because such taxes typically enjoy more protection under the Constitution.

However, that has not stopped a coalition of states–which has now grown to 20 governors and attorneys general–from filing a lawsuit immediately after President Barack Obama signed the bill. It began with Florida Attorney General Bill McCollum, and has only continued to grow. Several other lawsuits have been filed, but this is the one receiving the most press.

Virtually all of the government officials involved in the lawsuit are Republicans. The one exception is a Democratic attorney general, who was heavily pressured by a Republican governor. There is most likely a political grandstanding element to their action–many of them are running for re-election or higher office, and participating in the lawsuit against the unpopular healthcare reform law shores up their conservative credentials for primary season.

Although it is easy to dismiss the suit as partisan theater and a waste of taxpayers’ money, some legal scholars are considering the possibility that there may be some merit to it. Specifically, it remains to be seen whether the Supreme Court would rule that Congress is allowed to regulate inactivity, as opposed to activity, in commerce. If they are, some fear that it would lead to a slippery slope of mandates: would all Americans be forced to purchase a U.S. car if it is deemed to be for the greater good, as the mandate is purported to increase the availability of affordable health insurance? In the case that they are not, it has the potential to topple the entire structure of reform–not to mention federal authority altogether.

A handful of experts believe that the issue won’t even reach the highest court, since the state governments themselves are only indirectly affected by that provision of health insurance reform. In that case, there will probably be a sufficient number of individual Tea Party volunteers who would have standing to sue. In September, the Justice Department is scheduled to make a motion to dismiss the lawsuit in the 11th Circuit of the United States Court of Appeals. Since that circuit tends to be conservative, the case has a good chance of continuing past that point.

If the suit reaches the Supreme Court, it will probably take several years to do so. By then, President Obama will have appointed a second nominee to the Supreme Court. Whether or not the newest justice is Elena Kagan remains to be seen, but whoever he picks will most likely be sympathetic to one of his key domestic issues.