In the recent decision by the Eleventh Circuit Court, many Conservatives feel they’ve found vindication for their belief that Congress stepped over its bounds when passing last year’s Health Care Reform Bill.
At first I tended to agree that they would probably win the case. While I personally think that the Commerce Clause gives Congress the power to create an individual mandate as was done, I’m no lawyer! With this and being mindful of the current heavy rightward tilt of our Supreme Court, I was, as I mentioned, ready to simply give in to what seemed would be the inevitable loss of a chance to make any kind of helpful health care reform.
Now however, I’m just a little less sure. It’s been pointed out that Scalia and Kennedy, two of the stalwert Conservatives on the Bench, both voted in favor of expanding the Commerce Clause in a recent case.
It should also be noted that the 11th Circuit upheld the rest of the Affordable Care Act. This includes the part which states that a company can’t restrict access to health-care because of pre-existing conditions. One can only attempt to imagine what upholding that aspect of the Bill would do if the mandating of coverage were to actually fall. People co0uld and would simply wait until they were sick and then apply for insurance!
Now since nobody seems to think that the preexisting condition provision of the Affordable Care Act isn’t Constitutional, and Congress can “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” then it’s pretty hard to see how the individual mandate section wouldn’t be found to be Constitutional as well.
Now in the end, it’s really anybody’s guess how it will go down. If Scalia and Kennedy are consistent with their belief in how the Commerce Clause is to be interpreted, then there’s no problem and the mandate holds. If not, then it’s going to get seriously ugly. I hope they do what they have to do.