In a big blow to the Obama Administration, a second federal judge has declared that the Affordable Care Act’s individual mandate is unconstitutional. The mandate is a central provision of the health reform law that will, beginning in 2014, require nearly every American to maintain health insurance coverage.
Florida Judge Roger Vinson, appointed by Ronald Reagan, said today that the 26 states suing the federal government in his district are right that the mandate is an overreach by the federal government. He further said that the mandate is so central to the law’s function that the rest of the law is invalid without the mandate. “I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit,” Vinson wrote in his opinion. In other words, the entire law is now under legal threat – not just the individual mandate. “The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker,” wrote Vinson. Those suing over the mandate had asked the judge to halt implementation of the Affordable Care Act immediately. Vinson denied this request, meaning the law’s rollout will proceed while the Obama Administration appeals.
Most legal experts agree that the Supreme Court will make the final call, ruling sometime in 2012 or 2013. In December, Judge Henry Hudson of Virginia also ruled that the individual mandate was unconstitutional. Unlike Vinson, however, Hudson decided the rest of the law could stand, even without an individual mandate. Two other federal judges have reached opposite conclusions, deciding the mandate is perfectly legal under the Constitution.
As others have pointed out, none of these early lower court rulings predicts a final outcome. It’s impossible to know how the Supreme Court will ultimately rule on the individual mandate. I’ve talked to at least a dozen constitutional law experts and have heard a wide range of opinions on what could happen.
A recent decision, however, makes me think perhaps the challengers to the individual mandate have a steeper uphill climb than many realize. Earlier this month, the Supreme Court declined to hear a case that could have restricted the federal government’s powers under the commerce clause of the constitution. This is the same clause the Obama Administration cites in justifying the individual mandate – a justification Vinson rejected today.
The case the Supreme Court justices declined to hear recently – Clarence Thomas and Antonin Scalia dissented – had to do with a man arrested on charges he violated a federal law barring convicted felons from owning bulletproof vests. The federal government has the power to enforce this law, it argued, because it has the power to regulate interstate commerce. The bulletproof vest in question had at some point crossed at least one state line, making it fall within the bounds of federal regulation, according to the government. Allowing this law to stand, argued challengers, meant the commerce clause – and federal power – was virtually limitless. This is similar to the argument being made by challengers to the individual mandate.
That the high court would not even hear these arguments recently is not a good sign for Affordable Care Act foes who need at least five justices to hear their case and conclude the commerce clause does not allow the federal government to force Americans to purchase health insurance. A few days after the high court declined to hear his case, I talked to David Goldberg, the lawyer who spearheaded the unsuccessful effort to get the Supreme Court to review the bulletproof vest-commerce clause case. “For the tea leaf readers, I don’t think [the court declining to hear our case] was a good day for the health care challengers,” Goldberg said.
We won’t know for possibly a year or two. But for those keeping score, the tally is now officially tied, with two judges saying the individual mandate is constitutional and two saying the opposite.