Louisiana will join 25 states in a likely conga line to the U.S. Supreme Court after an appeals court ruling earlier this month in Atlanta that Congress overstepped its bounds by forcing U.S. citizens to purchase health insurance by 2014.
The Supreme Court appearance is likely because the recent ruling conflicts with a June appeals court decision in Ohio that the health-care law promoted by President Barack Obama is constitutional.
The law requires that the majority of Americans must purchase health insurance by 2014 or face a penalty from the federal government. The recent appeals court found that Congress cannot force the insurance requirement because the mandate cannot meet the legislative branch power to tax, since the enforcement tool is a penalty.
At issue is the commerce clause of the Constitution, which gives Congress the power “to regulate commerce with foreign nations and among several states, and with the Indian tribes.”
The states are arguing that the health-care law is an overreach of congressional power.
The safe money on the Supreme Court verdict is that the nine-member panel splits, leaving the matter in the hands of swing U.S. Supreme Court Justice Anthony Kennedy.
Kyle Duncan likes that scenario. Duncan is the appellate chief in the office of Louisiana Attorney General Buddy Caldwell, who was one of the original challengers to the law.
Kennedy has become the expert on the court when it comes to issues of federalism, Duncan said.
“The states are confident,” Duncan said. “We have a very good chance. It’s going to be a close one.”
Carl Tobias disagrees. The law professor with a perch a few hours from Washington at the University of Richmond School of Law sees some of the justices crossing ideological lines, even staunch conservatives like Justice Antonin Scalia and Chief Justice John Roberts.
“They’ll uphold the constitutionality,” Tobias said. “I don’t think it’s going to be close, six to three.”
The Supreme Court has given Congress wider latitude on the clause since the panel struck down six of eight laws ranging from minimum wage to agriculture relief passed during Franklin Delano Roosevelt’s presidency, Tobias said.
The ruling earlier this month from the appeals court, however, struck down the commerce clause argument by the government. The divided three-member panel contends Congress can only regulate “activity” while the law penalizes citizens for “inactivity.”
That makes the case more unique than any other involving the commerce clause, said Roger McEowen at Iowa State University’s Center for Agricultural Law and Taxation.
“We’ve never had a commerce clause case about regulating inactivity,” said McEowen, who predicts a split majority ruling that the law is unconstitutional.
The appeals judges also determined that the Supreme Court has never ruled in a way to “allow Congress to dictate the financial decisions of Americans through economic mandate.”
In April, the Supreme Court rejected a call for an expedited appeal of a Virginia lawsuit against the health-care law. When the Supreme Court may take up the case is unknown, but the delay could cause states like Louisiana headaches, said Deborah Juneau, of the Baton Rouge law firm of Kean Miller LLP.
Juneau focuses on health-care law and said deadlines to meet some of the laws’ provisions are already approaching.
“What it’s going to do is leave everyone in a state of what do we do?” Juneau said. “It’s not like we can wait around for a Supreme Court ruling. There are deadlines coming.”
And the question remains over whether the court will rule on just parts of the law. The recent ruling just struck down the provision requiring citizens to buy insurance, not the whole law.
That provision is key, however, because it pays for the implementation of the remainder of the law.
“The problem is that it is such a juggling act on how all the moving parts work together,” Juneau said.
Gerard Shields is chief of The Advocate’s Washington bureau. His email address is GerardShields