Blog | Wednesday, February 2, 2011

QD: News Every Day--Constitutional experts wrangle over judge's decision on health reform


Constitutional scholars are weighing in on Monday's ruling that Congress exceeded its authority when it passed health care reform legislation that included an individual mandate that every person must buy health insurance.

Legal analyst Stuart Taylor, a contributing editor for National Journal and Newsweek, says that the U.S. Supreme Court won't take much notice until after the appellate courts make their rulings, likely in 2012 or 2013, but add that timetable sets up an issue for the 2014 presidential race.

That's also the year that many of health care reform's biggest changes take effect.

Analysts note that U.S. district court judges have split along party lines, with two Democratic appointees ruling the legislation is Constitutional and two Republican appointees ruling it isn't.

Legal expert Jeff Toobin says such disagreements among judges are why we have a Supreme Court. He adds that any eventual ruling might come down to a swing vote by Justice Kennedy. Toobin may have insight here, since he authored the book "The Nine," an insider's look at the normally shielded inner workings of the chamber.

Conservative analyst Robert Alt from The Heritage Foundation says the judges who have ruled against health care reform have presented more fully developed decisions that affect more litigants. The plaintiffs in Monday's suit were the governors or attorneys general of 26 states.

"This is important because, contrary to the White House spin, litigation is not a scoreboard," he writes. "It is not enough to say that you have won some and lost some. Some district court wins 'count' more, because they are more indicative of what is likely to come next. Here, the cases the administration has lost have been better developed, have significant and sophisticated parties, and are in a better position for appeal than the more cursory cases that they have won at more preliminary stages."

Columbia Law School Professor Gillian Metzger, who has written previously on why the new federal health care law passes constitutional muster, said in a press release that the most recent ruling goes against precedent both in its take on Congressional power and its refusal to acknowledge "severability." The idea is that even when one part of the law in ruled unconstitutional, the rest of the law stands, even when severability isn't written into it.

"The Court has made clear that Congress has broad power to regulate economic activity comprehensively under the Commerce and Necessary and Proper Clauses," he writes. "That is what Congress did here: It comprehensively regulated the activity of accessing healthcare, in the process imposing on the insured the obligation to purchase health insurance to pay for the estimated $43 billion in uncompensated health care services they use annually."

Meanwhile, members of the Tea Party are taking heart from the judge's ruling, which started, continued and concluded with quotes from the strongly federalist Founding Fathers. They see it as a validation of their views.