If you read the newspapers and blogs, and listen to the talking heads on television, there seems to be little doubt that the health care reform law, or large parts of it, will be toast on June 28.
But let’s back up a little. There are two scenarios where the Supreme Court could rule the core of the law--the individual mandate--constitutional, or simply punt the issue and decide nothing for now.
The first scenario would be upholding the individual mandate, and possibly the expansion of Medicaid, based on philosophies espoused by two conservative justices in the Arizona immigration law ruling.
In the Arizona case, Justices John Roberts and Anthony Kennedy strongly supported federal preemptions over state law in ruling three of four provisions brought before the Court unconstitutional. The fourth provision, permitting police to check immigration papers when stopping people for other purposes, was upheld. But Roberts and Kennedy specifically noted the provision would remain subject to judicial oversight of how it is actually implemented, and is subject to more court challenges.
The second scenario could play out if Roberts and Kennedy show the same deference to federal law on the health care reform issue.
The question on Day 1 of oral arguments on the reform law on March 26 was not the mandate or Medicaid expansion, but the constitutionality of issuing a penalty on 2015 income tax returns against individuals who under the mandate do not obtain health insurance by 2014 (click here for story).
The federal Anti-Injunction Act of 1867 prohibits legal challenges until taxpayers start to pay a penalty, and the possibility exists that the Court could put off definitive rulings on reform until 2015. A Virginia Court of Appeals took that very position and declined to rule on the constitutionality of the reform law. And, the Virginia decision is part of the argument before the Supreme Court.
The justices on March 26 did not seem inclined to move in that direction, the Washington Post and CNN, among others, reported. But the federal preemption Kennedy and Roberts felt so strong about in the Arizona case could make a health care reform ruling based on the Anti-Injunction Act less of a dark horse than it seems.
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