Health-care reform law set back, setting stage for Supreme Court showdown

In a dissent, Judge Stanley Marcus, a Clinton appointee, accused the majority judges of ignoring the Supreme Court’s expansive reading of commerce clause powers and the exponential growth of Congress’s authority under the clause during the past two centuries.

“Although it is surely true that there is no Supreme Court decision squarely on point dictating the result that the individual mandate is within the commerce power of Congress,” Judge Marcus wrote, “the rationale embodied in the [Supreme Court’s] commerce clause decisions over more than 75 years makes clear that this legislation falls within Congress’ interstate commerce power.”

The Obama administration is expected to appeal the ruling. But it is unclear whether the government will ask the full 11^th Circuit to re-hear the case or will instead appeal directly to the Supreme Court.

An appeal directly to the Supreme Court would raise the possibility that the high court would hear the case during its upcoming term and issue a ruling by June 2012 – midway through a presidential election year.

Reaction to 11^th Circuit ruling was swift and unequivocal.

“We strongly disagree with this decision and we are confident it will not stand,” said Stephanie Cutter, deputy senior adviser to Mr. Obama, in a White House blog.

“The individual responsibility provision – the main part of the law at issue in these cases – is constitutional,” she said. “Those who claim this provision exceeds Congress’ power to regulate interstate commerce are incorrect.”

One of the plaintiffs in the lawsuit, the National Federation of Independent Business, issued a statement praising the court’s decision.

“Small-business owners across the country have been vindicated by the Eleventh Circuit’s ruling,” said Karen Harned, NFIB executive director. “The court reaffirmed what small businesses already knew – there are limits to Congress’ power.”

Other analysts focused on the potential timing of appeals.

“Now that judges appointed by both Democratic and Republican presidents have found the individual insurance mandate to be unconstitutional, the nation’s interest requires the Supreme Court to hear this case next term,” said Georgetown Law Professor Randy Barnett, in a statement. “Only then would the uncertainty inflicted upon the national economy by this unprecedented and unconstitutional law be lifted.”

He added: “Both the country and the Constitution cannot afford any delay.”

Elizabeth Wydra, chief counsel at the liberal Constitutional Accountability Center, said the 11^th Circuit majority had “transformed a political disagreement into a constitutional violation.”

She said: “Letting their policy views get the better of them, the majority ignored the text and history of the Constitution, centuries of Supreme Court precedent, and the basic reality of our modern health care system.”

Ilya Shapiro of the libertarian Cato Institute said the decision affirms that the Constitution places limits on federal power. “Today’s decision gives hope to those who believe that there are some things beyond the government’s reach and that the judiciary cannot abdicate its duty to hold Congress’s feet to the constitutional fire,” he said in a statement.

“It’s time now for the government to take this case directly to the Supreme Court; any delays would be unfortunate election-year politicking,” he said.

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