The oral arguments will focus on the limits of federal power and what the federal government can or cannot prescribe.
On Tuesday, on the other hand, a three-judge panel of the District of Columbia Circuit upheld the law. Judge Silberman, who had grilled Ms. Brinkmann so aggressively, wrote the majority opinion, and his discussion of the limits of Congressional power may have handed the administration a bigger victory than it wanted, because it presumably did not want to win on the grounds that Congress could do anything at all.My own beef with the mandatory insurance requirement is that the penalty provision is essentially a tax, and the enforcement provisions are carried out through the tax code. The penalties are imposed for people who refuse to sign up for health insurance plans if they are capable of doing so (have income above a certain level).
Judge Silberman said he remained troubled by what he called “the government’s failure to advance any clear doctrinal principles limiting Congressional mandates that any American purchase any product or service in interstate commerce.”
Then he adopted a version of Mr. Dellinger’s argument.
“That a direct requirement for most Americans to purchase any product or services seems an intrusive exercise of legislative power,” Judge Silberman wrote, “surely explains why Congress has not used this authority before — but that seems to us a political judgment rather than a recognition of constitutional limitations.”
Judge Silberman said there were Supreme Court decisions on issues like regulating the use of medical marijuana that had endorsed broad Congressional power to legislate in the name of commerce.
“It certainly is an encroachment on individual liberty,” he wrote of the health care law, “but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”
In dissent, Judge Kavanaugh praised the majority for its honesty in describing what followed from its ruling.
“The majority opinion here is quite candid — and accurate,” he wrote, adding: “The majority opinion’s holding means, for example, that a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional. So would a law mandating that parents purchase private college savings accounts.”
As written, the mandate requires almost everyone to get insurance or face a fine - $95 in 2014, $325 in 2015 and $695 in 2016 (with a maximum of $2,250 for a family). There is an exemption for low-income people.
This portion could be struck down but the lost revenue generated from the mandate would affect other provisions, including the preexisting conditions clause.
The individual mandate takes effect 2014. The preexisting condition requirement went into effect for children under 19 who are to be on their parents insurance. Adults will have the preexisting condition requirement starting in 2014. You would expect to see a fiscal effect based on the changes already enacted from which one can objectively judge the financial scoring on the health care package.
The health care reform doesn't hit at the core problem with health care delivery in the country - cost. The requirement to force people into obtaining health insurance doesn't reduce the cost of health care to these people. It increases those costs - significantly. The notion that having a greater pool of people paying into health care insurance will lead to overall lower premiums may work, but the costs for health care aren't being contained by any stretch. That will only come through changes not included in the health care reform package.
There's a difference between access to health care and affordability - and the health care reform package obfuscated the two.
So, the Supreme Court will take this matter and issue an opinion within months of the 2012 election, which makes the decision as much a political document as it is a legal one.