Health Care Reform Inches Closer to Supreme Court

BY Jason Kane  July 27, 2011 at 2:23 PM EST


Photo by Paul J. Richards/AFP/Getty Images.

The Thomas More Law Center formally asked the Supreme Court Tuesday to reverse an appeals court decision upholding the health care reform law.

Marking the first appeal of its kind to reach the nation’s highest court, the conservative legal group continues to insist the mandate requiring all Americans to purchase health insurance is unconstitutional.

Chiefly, its lawyers say the Affordable Care Act violates the Constitution’s Commerce Clause, which allows Congress to regulate economic activity between states. The decision not to purchase health insurance is not an economic activity and is therefore not subject to regulation, the group contends.

On June 29, the Cincinnati-based Sixth Circuit Court of Appeals ruled against that idea. In a 2-1 decision, a Republican-appointed judge joined a Democrat-appointed judge to rule that purchasing health insurance and deciding to attempt self-coverage are both “affirmative choices.” And that makes every American a party to that commerce whether they like it or not. “One is no less active than the other; and both affect commerce,” they wrote.

But the law center stated in its Supreme Court filing that allowing the health reform law to be subject to Commerce Clause will be the beginning of a landslide. Soon, the federal government “will have absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law.” The government could insist that Americans start “eating certain foods, taking vitamins, losing weight, joining health clubs, buying a GMC truck, or purchasing an AIG insurance policy.”

The words closely resemble the dissenting opinion of Sixth Circuit Judge James L. Graham, who wrote that if the mandate stands, “it is difficult to see what the limits on Congress’s Commerce Clause authority would be.”

Since the health care law passed in 2010, more than 30 legal challenges have been filed. Decisions are expected this summer on cases heard before the 4th and 11th circuits that closely resemble the Thomas More case. Both of those cases are likely to be appealed to the Supreme Court, regardless of the outcome.

While the law center could have appealed for the case to be reconsidered by the entire 6th Circuit — rather than just the three-judge panel — there is “a certain amount of interest in being the first to make it to the Supreme Court,” said Marcia Coyle of the National Law Journal. “It puts them at an advantage.”

Now that the petition has been filed, the federal government has 30 days to respond and the Thomas More Law Center will have 10 additional days for a rebuttal. The Supreme Court justices will meet after their recess ends in September to review more than 1,000 petitions filed over the summer and decide which cases to hear.

The Obama administration could urge the court to throw out the request and uphold the lower court’s ruling, but the possibility is just as strong “that the government may urge the court to take the case in order to resolve the controversy surrounding the law,” Coyle said.

She added that the Supreme Court may have a similar reason to hear the case.

“If the other circuit courts decide to uphold the law this summer and there’s no conflict among those decisions, the Supreme Court may decide to stay out of it,” Coyle said. “Having said that, it’s the kind of issue that will continue to be a source of lawsuits around the country, and the Supreme Court may feel the need to resolve this once and for all.”