Analysis: The Long Road To A Supreme Court Decision On Health Law’s Mandate

Kaiser Health News

The HCLSC – health care litigation spin cycle – is in overdrive now that a Reagan-appointed federal judge has strongly signaled in court that he is very likely to follow a George W. Bush appointee who struck down the individual mandate at the heart of the new health care law.

Republican critics of the law were saying that “several” (that is, two) judges had found unconstitutional the requirement that Americans obtain insurance or pay penalties. Meanwhile, President Obama was saying: “We’ve got 12 federal courts who have dismissed similar lawsuits. So the majority of courts who looked at this issue so far are absolutely convinced that the health care bill is [constitutional].” Twelve! Sounds convincing. But Obama neglected to note that 10 of those lawsuits were mostly beside the point because they were not aimed at the individual mandate or were dismissed on grounds that did not uphold its constitutionality.

If counting judicial noses at this early stage were a reliable guide to the likely fate of the health care law on appeal, the score would stand at two Clinton-appointed judges, George Steeh and Norman Moon, upholding the individual mandate; Bush-appointed Henry Hudson striking it down Dec. 13, and Reagan-appointed Roger Vinson sounding during an oral argument on Dec. 16 like he would do the same. The four sit in Detroit; Lynchburg and Richmond, Va., and Tallahassee, Fla., respectively.

But district judges’ rulings tell us little or nothing about what the federal appeals courts and the Supreme Court will ultimately do with these cases. Below is an overview of the litigation, what it’s about, and how it’s likely to unfold.

How many health care lawsuits are there? More than 20 have been filed around the country, some going to the heart of the law and some peripheral.

Transcript: Stuart Taylor On Health Law Decision

Kaiser Health News

 Lawyer and journalist Stuart Taylor discusses today’s development in health care reform. U.S. District Court Judge Henry Hudson in Virginia struck down a key part of the new health law, saying that the mandate on most Americans to buy health coverage is unconstitutional.

Watch the video  or listen to the audio.


JACKIE JUDD: Good day. This is Health on the Hill. I’m Jackie Judd. The lynch pin of the health care overhaul law has been declared unconstitutional. Federal Judge Henry Hudson in Virginia ruled that Congress overstepped its authority by requiring that virtually all Americans have health insurance. Here to discuss the ruling, and its implications, is Stuart Taylor, contributing editor for Newsweek and The National Journal, welcome so much.

STUART TAYLOR: Nice to be with you, Jackie.

JACKIE JUDD: The judge ruled in the case brought by the state of Virginia, on what did he base his ruling?

STUART TAYLOR: He said that Congress had no power and the President, and no power in the U.S. Constitution to require individuals who don’t want to buy health insurance to either buy it or pay a penalty for not buying it. And the idea is that Congress does not have unlimited power.

Now, a lot of us have gotten used to the idea that their power is virtually unlimited except for specific provisions of the Bill of Rights, but the Supreme Court has said that they have lots of power but it’s not unlimited. He said penalizing somebody, taxing somebody, call it what you will, for inactivity, just for being born and raised in the United States and deciding not to buy health insurance is beyond the power of Congress and the federal government.

JACKIE JUDD: This is known as the individual mandate, which doesn’t kick in until 2014. What did the judge say about the rest of the bill?