Top 10 for '10: No. 1
No. 1: Judicial and Other Threats to PPACA's Insurance Mandate
Even before the Patient Protection and Affordable Care Act (PPACA) was signed into law, on March 23rd, objections were raised to its Constitutionality. The overriding issue: Whether Congress has the authority to mandate the purchase of health insurance (starting in 2014) and to impose a financial penalty for not doing so. For its part (and before the passage of the bill), the Obama administration flatly rejected the notion that the legislated penalty for not buying insurance could be construed as a tax—largely because of the political poison of the T word.
But in January, Yale law professor Jack Balkin, writing in the NEJM, explained that the Constitutionality of PPACA rests squarely on the notion that the penalty is a tax on those persons* who fail to buy health policies and that, by extension, Congress has the authority to impose taxes that serve the general welfare. End of story. Balkin further predicted that the Supreme Court wouldn't even touch the insurance mandate/tax issue, unless a federal court of appeals knocked it down. And in that case, the high court would uphold it.
In one of many pending state-based cases that have now been brought against PPACA (including a suit in Florida), Balkin and others filed an amicus brief arguing the "tax point," reported the NYT in July. Balkin also criticized President Obama for not being "honest with the American people about the nature of [PPACA]." The criticism has some merit, given the fact that the Justice Department is now rebutting PPACA detractors with the same the-penalty-is-a-tax argument.
Also challenging PPACA's insurance mandate is the argument that Congress (under the Commerce Clause) doesn't have the power to regulate "inactivity." It was the rationale used by Federal Judge Henry Hudson, who ruled on December 13 that Congress lacks the authority to require the purchase of individual health insurance (and, by extension, to levy taxes [or penalties?] on citizens for not buying insurance).
With Hudson's ruling, legal scholar Mark Hall, also writing in the NEJM, expressed relative dismay at the mandate's future (as the issue inexorably wends its way through the federal court system). Nevertheless Hall noted that there is a long judicial precedent for giving serious leeway to Congress when it comes to interstate commerce—like the commerce of health insurance. And negating PPACA's insurance mandate can't necessarily be done in isolation. Hall wrote,
[T]he Court must also decide whether to strike the accompanying insurance regulations and subsidies, which are much more popular and clearly within congressional power. Judge Hudson struck only the individual mandate, “severing” it from the rest of the [PP]ACA. But because the [PP]ACA’s ban on medical underwriting would wreak havoc on the marketplace without the mandate, other judges might feel torn between striking both and letting both stand.
Outside the court system, there are otherwise toothless threats to PPACA in the form of newly proposed state laws. The propositions—like those considered in the Red States of Missouri, Arizona, and Oklahoma—seek to nullify the federal mandate; however, they are largely symbolic, given the fact that federal law routinely trumps state law and that the Constitutionality of PPACA will have been decided by the time its insurance mandate goes into effect (in 2014).
* Meaning individuals who don't already have employer-provided health insurance. The "mandate" also does not apply to dependents, Medicare or Medicaid recipients, military families, overseas ex-pats, or religious objectors.
