JONATHAN COHN OCTOBER 7, 2010
The future of health care reform just became a little more secure, thanks to a federal judge in Detroit.
On Thursday, U.S. District Judge George Caram Steeh issued a ruling in Thomas More Law Center v. Barack Obama. It's one of a dozen lawsuits the opponents of health care reform have filed in federal courts, in an effort to roll back the Affordable Care Act. But it is the first case in which a judge has issued a verdict. And the verdict is pretty much a wholesale win for reform.
The plaintiffs in this case are the Law Center, a conservative public interest law firm based in Ann Arbor, Michigan, along with some Michigan residents. The focus of their lawsuit is the individual mandate--the requirement, which becomes effective in 2014, that all Americans obtain a "creditable" health insurance policy. ("Creditable" is wonkspeak for a policy that includes basic benefits, as defined by the government.) According to the plaintiffs, the federal government has no right to impose that requirement, since it would compel people to spend money on health insurance instead of some other good.
In response, the Obama Administration has argued the authority to impose the mandate lies in two separate constitutional provisions--one that gives the federal government power to regulate interstate commerce and one that gives the federal government power to tax for the sake of promoting the general welfare. Steeh basically agreed with both propositions.
I'm not a constitutional scholar, so I'm not really qualified to assess the finer points of Steeh's legal argument. (I'll try to update this item with some more input from people who are.) But the premise of Steeh's legal argument seems to be a notion about policy--that it's not possible to regulate the insurance industry, in a way that would make coverage available to all people, without compelling every person to get coverage. On that count, I would argue, Steeh is correct.
So what does this mean for the repeal movement? My limited understanding, informed by a few casual conversations with some law professors, is that Steeh's decision is consistent with the traditional understanding of the Commerce Clause--that the only way to throw out the mandate would be to reexamine conventional assumptions about the Commerce Clause. That would be a fairly radical move.
But Steeh is a Clinton appointee. As those other suits go forward in other states, culminating perhaps in a Supreme Court case, we're going to hear from some judges who are more conservative--in some cases, a lot more conservative. Radical reinterpretation of the Commerce Clause may be something they're willing to try.