by Art Kelly
The U.S. Supreme Court will probably decide on the constitutionality of Obamacare by June 2012.
Last week's 2-1 ruling by the 11th Circuit Court of Appeals in Atlanta that the individual mandate in Obamacare, which requires everyone to purchase health insurance, is unconstitutional, will almost certainly be appealed by the U.S. Department of Justice to the Supreme Court.
If that happens, the Court could hear the case in March or April, which will be in the middle of the presidential campaign.
The suit, State of Florida v. U.S. Dept. of HHS, was filed by 26 states and the National Federation of Independent Businesses.
On January 31, 2011, U.S. District Judge Roger Vinson ruled that Obamacare's individual mandate is unconstitutional and, because it was not clear if the other parts of the law would have been enacted without that key provision, declared the whole law to be "void."
On February 17, the Obama Administration asked Vinson for a clarification of his ruling. On March 3, Vinson issued a 20-page document which stayed his earlier ruling that the law is unconstitutional, but ordered the Obama Administration to appeal to the 11th Circuit Court of Appeals.
In the Appeals Court, Chief Judge Joel Dubina and Circuit Judge Frank Hull ruled that Obamacare's individual mandate was "an unprecedented exercise of congressional power." In a dissent, Circuit Judge Stanley Marcus noted "the undeniable fact that Congress' commerce power has grown exponentially over the past two centuries" and therefore had authority to regulate large portions of the economy.
The majority decision explained:
"Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975-page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die."
Judges Dubina and Hall also said that if the individual mandate were upheld, there would be no limit on what Congress could enact.
"We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers," the decision said.
However, the panel rejected the claim that the law's requirement for states to assume greater responsibilities for Medicaid was an unconstitutional intrusion into states rights.
Even more significantly, the court said that the remaining portions of Obamacare could be enforced. Conservatives have argued that, since the bill that was passed did not contain a routine severability clause, if any part of the law were unconstitutional, the whole law should be invalidated.
Instead, the court said:
"The individual mandate, however, can be severed from the remainder of the Act's myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act's other provisions remain legally operative after the mandate's excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met."
Nonetheless, the Associated Press reported that the decision was "a stinging blow" to President Obama and the individual mandate "is the foundation for other parts of the law and key to paying for it."
Florida Attorney General Pam Bondi hailed the outcome.
"We have prevailed in preventing Congress from infringing on the individual liberty protected by the U.S. Constitution," she said.