It’s official; the Supreme Court will hear the a challenge to the Affordable Care Act, President Obama’s health care reform law. The Court’s decision is expected to come next June. Going by the tenor of conservative rhetoric and the decisions of lower courts, the key issue at hand is the “individual mandate,” which requires all Americans to purchase health insurance by 2014 or face financial penalties.
Conservatives argue that the mandate is a gross overreach of federal power —by their lights, the Constitution doesn’t allow the government to tax “inaction.” Allowing the mandate to stand, they argue, would put the United States on a dangerous road toward unrestrained government. Indeed, in his ruling to uphold the individual mandate, Judge Lawrence Silberman of the DC Circuit Court of Appeals pointed out that while “the Government does stress that the health care market is factually unique,” it “concedes the novelty of the mandate and the lack of any doctrinal limiting principles.” As Adam Serwer notes at Mother Jones, this poses a problem for ACA defenders who hope to show that the law isn’t a stepping stone to ever more intrusive government.
It’s hard to predict how the Supreme Court will approach the law. Even if the Court’s conservatives want to strike down the individual mandate —and the Affordable Care Act writ large —there aren’t many avenues toward that goal. Between Judge Silberman and Judge Jeffrey Sutton, two Republican-appointed jurists at the Circuit-level have upheld the mandate as constitutional. In particular, Silberman has dismissed the distinction between “inactivity” and “activity” as meaningless. To wit:
The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.
Of course, the Supreme Court is free to accept or dismiss this – if it chooses, the Court can overturn decades of precedent to make a distinction between “activity” and “inactivity.” Either way, it’s choice will likely define the 2012 election, and everything that comes after.