Stage set for Supreme Court showdown over Obamacare

C.J. Ciaramella Contributor
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Supreme Court watchers are expecting a showdown over Obamacare in the wake of a court decision striking down a key portion of the health care law.

The 11th Circuit U.S. Court of Appeals ruled Friday the individual mandate in the health care law is unconstitutional. The decision conflicts with another circuit court’s ruling. Many now believe the dueling court rulings have set the stage for a significant Supreme Court case on Congress’ tax authority and commerce powers.

“Now that there’s a split among the circuits, it just about ensures it’s going to the Supreme Court,” said Erwin Chemerinsky, dean of the UC Irvine School of Law and a constitutional scholar.

Under the Commerce Clause of the Constitution, Congress can “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Courts tended to narrowly interpret the Commerce Clause until the 20th century, when Congress’ regulatory powers were greatly expanded.

Chemerinsky, the White House and others argue the health care law fits well within those established powers.

“It’s very difficult under the constitutional principles we’ve followed since 1930 to argue that an $850 billion industry can’t be regulated as interstate commerce,” Chemerinsky said. (RELATED: White House strikes back against health care ruling)

The 11th Circuit ruled, however, that the individual mandate, which will require all those who can afford to do so to purchase some form of health insurance or face a fine, was a penalty, not a tax.

The court “concluded that the individual mandate exceeded congressional authority under Article I of the Constitution because it was not enacted pursuant to Congress’s tax power and it exceeded Congress’ power under the Commerce Clause and the Necessary and Proper Clause.”

Conservative opponents of the law and more federalist-leaning law scholars have applauded the decision.

“It’s a very strong opinion on most issues,” said Ilya Somin, an associate professor of law at George Mason University. “It does a very good job of explaining why there’s no way to uphold this mandate without giving Congress the power to enforce a mandate of any kind.”

Somin said a key distinction in the case, which may give the Supreme Court pause, is the individual mandate regulates inactivity, rather than activity of businesses and consumers.

“By and large, the Supreme Court has taken an extremely expansive view of Commerce Clause powers,” Somin said. “But this case is different because the Court has never addressed the question of regulation of inactivity. There’s always been some kind of preexisting activity that Congress was regulating.”

The Supreme Court’s last major ruling on the Commerce Clause was Gonzales v. Raich in 2005. The Court ruled Congress can criminalize the production and use of homegrown marijuana, even in states with medical marijuana laws.

“I feel the Raich decision was wrong,” Somin said, “but even as expansive and dubious as it was, it was still regulating activity.” (RELATED: Court of Appeals strikes down Obamacare individual mandate)

But while constitutional scholars may disagree on the precedents and semantics of the case, they acknowledge it will have far-reaching impacts.

“There’s not been a law of this significance before the Supreme Court in decades in terms of Commerce Clause power,” Chemerinsky said. “The laws they considered before were so much less important than this one.”

The issue has also spurred a national discussion on federalism and the limits of congressional power.

“I think reasonable people can disagree over whether the mandate is constitutional, but it’s clear now that this is not just some frivolous lawsuit by right-wing extremists,” Somin said. “Nobody can say that any longer.”