Health Reform's Judgment Day ; This Week, the Supreme Court Likely Will Decide Whether Obama's Health Law Is Constitutional. the Ruling Will Shape the Future of Health Care in America

By Zremski, Jerry | The Buffalo News (Buffalo, NY), June 24, 2012 | Go to article overview

Health Reform's Judgment Day ; This Week, the Supreme Court Likely Will Decide Whether Obama's Health Law Is Constitutional. the Ruling Will Shape the Future of Health Care in America


Zremski, Jerry, The Buffalo News (Buffalo, NY)


Two years after Congress remade the American health care system, the U.S. Supreme Court may be poised to remake it again.

As soon as Monday and almost certainly sometime this week, the high court will rule in a series of cases that will determine whether every American will have to buy health insurance starting in 2014 and whether states will have to expand their Medicaid programs to reach beyond the poor.

The 2010 health care law mandated those changes and many others, and their future, oddly, may be the least of what is at stake in the pending decisions.

In question, too, is the very scope of congressional power.

Yet despite the likely significance of the court's ruling on American medicine and far beyond, Buffalo-area health care experts agree on an ironic fact.

While the justices may, in fact, overturn "Obamacare," they can't end health care reform -- which continues on a daily basis far apart from any act of Congress, especially in communities with cutting-edge health care systems such as Buffalo.

"When the decision comes down, millions will approve and millions will scratch their heads and wonder what it means," said Joe McDonald, president and chief executive officer of Catholic Health of Buffalo. "We're just going to keep our view on what we're doing."

If the high court overturns the key provision in the Affordable Care Act, the 2010 law at question in these cases, there's no doubt that millions will approve.

The "individual mandate," which would force everyone to buy health insurance, remains deeply unpopular.

Seven in 10 Americans polled by the Kaiser Family Foundation in April opposed it.

And in a poll of 477 Erie and Niagara county residents conducted last month by Thoroughbred Research Group on behalf of Independent Health, 64 percent of respondents opposed a mandate that forces people to either buy health insurance or pay a fine.

But the mandate isn't subject to a popularity contest. Its fate depends on the high court's reading of one of the key clauses of the Constitution.

The Obama administration argues that the Constitution's Commerce Clause, which gives Congress the power to regulate interstate commerce, gives it the right to force people to have health coverage.

At oral arguments in March, Solicitor General Donald B. Verilli Jr. said that's because the uninsured invariably affect business across state lines.

"The Affordable Care Act addresses a fundamental and enduring problem in our health care system and our economy": the fact that more than 40 million uninsured Americans still will get health care someday -- and leave everyone else to pay for it, Verilli said.

But to conservative opponents of the bill, using the Commerce Clause to justify forcing everyone to buy health insurance constitutes a mighty legal stretch.

"The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce," said Paul D. Clement, the lawyer who asked the high court to overturn the law.

The power of Congress

Clement's comments hint at what is really at stake in this week's ruling: how much power Congress really has.

The Commerce Clause is the legal bulwark of much federal legislation since President Franklin Delano Roosevelt's New Deal. Federal labor laws and environmental regulations are among many that rely on the Commerce Clause.

That's why progressives are deeply worried about the case's outcome. They fear that a ruling limiting the breadth of the Commerce Clause could open the door to litigation challenging other federal programs -- while hamstringing Congress as it tries to address other crucial issues.

"The critical question we are talking about in this litigation is the reach of the federal government's power to solve national problems," said Neera Tanden, chief operating officer of the left- leaning Center for American Progress, at a recent American Constitution Society discussion on the health care cases. …

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