Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours for oral argument, to be held in March. The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it. It is unclear, at this point, whether all of the cases will be heard on a single day.
The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group. It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group, the Thomas More Law Center, and three of its members, and by Liberty University and two of its employees.
If the federal government can require people to purchase health insurance, what else can it force them to do? More to the point, what can’t the government compel citizens to do?
Those questions have been the toughest ones for the Obama administration’s lawyers to answer in court appearances around the country over the past six months. And they are likely to emerge again if, as expected, the Supreme Court, as early as Monday, agrees to be the final arbiter of the challenge to President Obama’s signature health care initiative.
Neverthless, Judge Laurence Silberman voted with a majority of a three-judge panel of the 11th Circuit to uphold the law. Jon Healey writes at The Los Angeles Times:
Citing Supreme Court Justice Antonin Scalia's concurring opinion in Gonzales v. Raich, a lawsuit that unsuccessfully challenged the feds' seizure of marijuana plants grown ostensibly for medicinal use, Silberman wrote: "A single individual need not even be engaged in any economic activity -– i.e. not participating in any local or interstate market -– so long as the individual is engaged in some type of behavior that would undercut a broader economic regulation if left unregulated. And a single individual need not even be engaging in the harmful activity that Congress deems responsible for a national economic problem; it is enough that in general, most do."
Liptak concludes:
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.”
Within hours of the decision on Tuesday, opponents of the health care law were issuing statements, and their theme was predictable. “Like the government,” said Randy E. Barnett, a law professor at Georgetown, “the majority could identify no limit to an unprecedented power of Congress.”
