Health Care Split Decisions Push Fight to the Supreme Court

An appeals court ruling against health care reform is just a prelude to a big case

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In one of the main legal challenges against the health care reform passed last year, the 11th Circuit U.S. Court of Appeals in Atlanta declared the law's "individual mandate" unconstitutional, calling it an "unprecedented exercise of congressional power." The 2-1 ruling constitutes the first time a Democrat-appointed judge has struck down the mandate. Federal judges have been weighing in on the bill's constitutionality for a while now and health care reporters and pundits are weighing in on where the ruling leaves the legislation.

This is headed for the Supreme Court. "If there was ever any doubt that the long-raging debate over the constitutionality of the federal health-care overhaul... would ultimately be settled by the U.S. Supreme Court, that doubt was all but extinguished today," writes Ashby Jones at The Wall Street Journal's Law Blog. Steve Benen at the Washington Monthly agrees: "With the 6th and 11th circuits in conflict, there is now no real doubt that the Supreme Court will have to hear the case. We can probably expect a ruling next June — about five months before the presidential election."  In a moment of health care nerdiness, The New Republic's health care reporter Jonathan Cohn tweets "If you care about #obamacare, pro or con, don't make plans for next June -- and end of next year's Supreme Court term."

This is about the individual mandate. Today's decision, which the administration is expected to appeal, essentially said that requiring individuals to purchase health insurance, or any other type of private product, is unconstitutional. Importantly, as Peter Suderman at Reason points out, the panel "did overturn lower court Judge Roger Vinson's decision to invalidate the entire law, preferring to strike only the mandate and related provisions."

The scoreboard. "There were five federal district courts to rule on the ACA on the merits, three sided with the law’s constitutionality and two sided against it," writes Steve Benen. "There are now two federal appeals court rulings, and they’re split one to one." Keeping score of the partisan leanings, The Washington Post's Ezra Klein notes that "We've now had a Clinton appointee strike the mandate and a George W. Bush appointee uphold it. Partisan streak broken at appeals level." Jonathan Cohn notes that the Clinton-appointed judge "has a very conservative reputation."

What's next? As Politico's Jennifer Haberkorn notes "The federal government will have 90 days to appeal to the Supreme Court or ask the entire 11th Circuit to review the ruling." As for predictions of the future, SCOTUS Blog is starting to ask legal experts about how they think the Supreme Court will rule on this if it takes it up. Georgetown University professor Orin Kerr thinks six justices will uphold the bill's constitutionality. Here's why:

Here are my guesses. Justices Breyer and Ginsburg are pretty obvious votes for the mandate, as they dissented in United States v. Lopez. Justices Kagan and Sotomayor seem like safe votes for the mandate, even if only for the reason that there is almost no opposition to the constitutionality of the mandate in the Democratic establishment from which they were appointed.  Chief Justice Roberts will likely vote to uphold the mandate given the very expansive views of the Necessary and Proper clause that he signed on to just recently in United States v. Comstock. I suspect Justice Kennedy will vote to uphold the mandate given his concurring opinion in United States v. Lopez. And I’m pretty sure Justice Thomas will vote to strike down the mandate given his views of the Commerce Clause.  In contrast, I don’t have good sense of where Justices Scalia and Alito might come out.

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