Healthcare’s shifting dynamics

Egypt has dominated the headlines, but the healthcare reform battle, which started
nearly two years ago and will continue for another two years, has taken a dramatic
turn. President Obama is facing the real possibility that his signature accomplishment
gets overturned by the Supreme Court right before he faces the voters again in the
2012 election.

The legal community is now taking a second look at the question of the constitutionality
of the individual mandate for purchasing healthcare, the central tenet of the law.
That question seemed more the subject of a political campaign than a serious legal
question just months ago. But it is now a question in 20 pending cases brought against
the law.

Sen. Rand Paul (R-Ky.), who opposes the mandate, said this week the Congress doesn’t
have the authority under the Commerce Clause to regulate inactivity by forcing those
without insurance to buy it. “If you can regulate inactivity, basically the
non-act of buying insurance, there is no aspect to our life that would be left free
from government regulation and intrusion,” Paul said.

The decision last Monday by Florida Judge Roger Vinson to rule the law unconstitutional
has shifted the dynamics and put the White House squarely on the defensive. As Randy
Barnett, a Georgetown University law professor, told The Washington Post this week, “They can no longer dismiss Hudson’s
ruling as a one-off … and the breadth of and depth of Judge Vinson’s opinion is
very impressive.”

All Senate Democrats voted against repeal of the law in a vote forced by Republicans
this week, but they voted with Republicans to ditch the 1099 tax reporting requirement
that Obama himself had admitted was hurting small businesses. There will be other
incremental attempts at repeal, and oversight hearings as well. But the mandate
could sink the bill, and those on both sides of the debate want it resolved as quickly
as possible. Sen. Bill Nelson (D-Fla.) offered a resolution urging the Supreme Court
to take it up soon, and Virginia’s attorney general, Ken Cuccinelli, who brought
another case against healthcare reform, said he and Virginia Gov. Bob McDonnell
are “particularly concerned about the possibility of wasting precious and strained
taxpayer dollars for a law that may well be struck down.”

According to a report
in The Hill, the Supreme Court isn’t likely to rule on the constitutionality
of healthcare reform until 2012 or later.

Tired of the healthcare fight? We’re years from the end.

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