It was inevitable that the Patient Protection and Affordable Care Act — otherwise known as the health care reform law, or ObamaCare — would end up at the U.S. Supreme Court.
Justices announced Monday they’ll review two cases from the 11th Circuit Court of Appeals, one of which was filed by 26 states, including Nevada, against the U.S. Department of Health and Human Services.
This is good news. It means sometime next summer, we’ll find out if the signature achievement of President Obama’s first term will remain the law of the land, or not.
As a matter of law, the court will settle a central legal question: Can the federal government not only regulate commerce between the states that’s already occurring, but also require citizens to engage in commerce in the first place?
“There’s got to be outer limits to the Commerce Clause,” said Mark Hutchison, the attorney retained by former Gov. Jim Gibbons to fight the health care law on behalf of Nevada. “This is just beyond the Commerce Clause.”
(The issue of state insurance requirements is a separate matter. Nevada, like many other states, requires motorists to purchase automobile insurance. Massachusetts, thanks to former Gov. Mitt Romney, requires residents to buy insurance or face fines. But, the legal thinking goes, under the 10th Amendment, states have powers not allowed to the federal government.)
Hutchison said he and attorneys for the other states are confident, in part, because of the 1995 ruling in U.S. v. Lopez, in which the court struck down a federal criminal law that banned possession of a handgun within 1,000 feet of a school. The court — with likely swing vote Justice Anthony Kennedy in the majority — ruled that handgun possession was not an economic activity and thus was outside the realm of the Commerce Clause.
Ironically, Lopez was cited by Nevada Attorney General Catherine Cortez Masto in 2010 when she refused Gibbons’ order to join the other states suing the federal government. (Gibbons ultimately hired Hutchison without Cortez Masto’s consent.)
The attorney general concluded in a four-page letter to Gibbons that the lawsuit against the government wasn’t likely to succeed because health insurance is a matter of interstate commerce, and thus within the authority of Congress to regulate. (Thurbert Baker, then attorney general of Georgia, made similar arguments when he refused then-Gov. Sonny Perdue’s similar demand to join.)
Whether they’re right remains to be seen. But nobody has more on the line politically than Obama, who is probably best positioned to profit from the decision no matter which way it goes.
It was political consultant James Carville who said during a Barrick Lecture at UNLV in 2010 that if the law is struck down (especially on a 5-4 vote, as many expect), Obama can say he saw a problem and tried to solve it, only to be thwarted by obstructionist Republicans without plans of their own. He’s already laying the groundwork for that attack, and a June ruling from the court would set the stage for a health-care driven election next year.
If the law is upheld, Obama gets a boost as well, and a strong contrast with every major Republican candidate who has called for the law’s repeal. That goes double if the Republican nominee, who will most certainly be decided by the time the ruling comes down, is health care mandate pioneer Romney.
That latter option would also be good for the millions of people who don’t have health care now but will have it under the law. There’s also that.
Steve Sebelius is a Review-Journal political columnist, and author of the blog SlashPolitics.com. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at (702) 387-5276 or ssebelius@ reviewjournal.com.