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Supreme Court may end fight over healthcare reform law. Or not.

September 28, 2011 |  5:01 pm

President Obama signs healthcare law
Even before the Affordable Care Act became law, the main legal question wasn't whether the Supreme Court would review it, but when. On Wednesday, the Obama administration suggested an answer: late this year or early in 2012, in time to play a prominent role in the next presidential election.

The Justice Department announced that it is petitioning the Supreme Court to overturn a recent ruling in the 11th U.S. Circuit Court of Appeals that held part of the law unconstitutional. That part also happens to be the most controversial and least popular provision: the requirement that adult Americans obtain health insurance, starting in 2014.

There's no guarantee that the justices will agree to hear the case this term, but they can't put it off forever. Various appeals panels have issued contradictory rulings on the measure, with one upholding it, another rejecting part and upholding part, and a third dismissing a challenge as premature. Two other appeals panels tossed out lawsuits brought by the attorney general of Virginia and a group of doctors in New Jersey on procedural grounds.

The 11th Circuit shared the concern that many readers of this blog have expressed about the individual mandate: If the federal government has the power to require the public to buy coverage from private insurers, where does its power over the citizenry end? The good news for supporters of "Obamacare" is that there are at least three answers to that question, any of which could lead to a legal victory. The bad news is that none of them is likely to make the law more palatable to the public.

The first answer is that critics of the individual mandate take it out of context when they say the government is forcing people to buy a product. Everyone is a consumer already of healthcare, which the Supreme Court has recognized as a form of interstate commerce that Congress can regulate. The individual mandate simply regulates how people pay for what they buy. Put another way, it's designed to make sure that people who get sick cover their costs, rather than forcing someone else to pick up the tab.

The second is that the mandate is integral to insurance reform, and in particular the law's requirement that insurers offer coverage to everyone regardless of preexisting conditions. If you can't bar insurers from discriminating against those with preexisting conditions, millions of Americans won't be able to buy coverage. And if you don't require people to carry insurance, they'll wait until they become sick to sign up for coverage, triggering a vicious cycle of cost increases.

The third is the one Elena Kagan gaveat her confirmation hearing in the Senate Judiciary Committee last year. When Sen. Tom Coburn (R-Okla.) asked what stopped Congress from enacting a law requiring people to eat three servings of fruits and vegetables daily, Kagan said, in effect, "Congress." Her actual response: "We can come up with sort of, you know, just ridiculous-sounding laws, and the principal protector against bad laws is the political branches themselves." In other words, the Founders counted on lawmakers' fear of a voter backlash to keep them from overstepping their bounds.

Regardless of how they play in the Supreme Court, such legalistic arguments aren't likely to win over many voters. Although people argue vigorously about how big the federal government should be, there's well-nigh universal support for limiting its power. The Supreme Court's expansive view of the commerce clause -- for example, its 1942 ruling in Wickard vs. Filburn that the federal government could limit the wheat a farmer grew for his own family to eat -- is alarming to many because it seems contrary to the American notion of liberty.

That's why the administration needs to come up with not just a good legal answer to the question about the limits of government power, but also an answer that makes sense on Main Street. I haven't yet heard an explanation for the individual mandate that would satisfy the latter audience, even though I think requiring people to obtain coverage is the right thing to do.

RELATED:

Let go of the status quo

Elena Kagan on fruits and vegetables

An individual mandate to buy ... a Malibu?

Healthcare reform v. individual liberty, GOP edition

-- Jon Healey

Photo: President Obama signs the Health Care and Education Reconciliation Act of 2010, a companion bill to the Affordable Care Act, on March 30, 2010. Credit: Alex Brandon / Associated Press

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