Health care challenge to top busy SCOTUS term

The Daily Record Newswire

Picking the most important case of the current U.S. Supreme Court term is no easy task, given that the justices are primed to take up issues such as the states' ability to regulate immigration, same-sex marriage, affirmative action and warrantless GPS tracking.

"Some people are calling it the term of the century," observed Georgetown Law professor and former Acting Solicitor General Neal Katyal at a recent Supreme Court discussion.

But one issue does rise above the rest in terms of its likely impact: the Court will have its say about the constitutionality of the federal health care law's individual mandate - and the entire law itself.

"No other case ... is likely to have as great a potential economic impact, or address issues as fundamental to the nature of our constitutional system of government," Donald M. Falk, a partner in Mayer Brown's Supreme Court and Appellate practice in Palo Alto, Calif., told the Daily Record Newswire.

Several states and organizations have challenged Congress' authority to enact the provision requiring individuals to purchase health care coverage. In its petition for a writ of certiorari, the Thomas More Law Center, a national public interest law firm, urged the Court to strike the law down to "establish a meaningful limitation on congressional power under the Commerce Clause."

"If the Act is understood to fall within Congress's Commerce Clause authority, 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 petition stated.

Lower courts have split as to whether the Commerce Clause grants such power. What's more, they also have disagreed about whether the entire health care law is constitutionally doomed should the individual mandate provision not pass constitutional muster.

Even Supreme Court experts are reluctant to say which way the justices will rule.

"It is very difficult to predict the outcomes of cases before the Supreme Court - even in cases that [appear] to be preordained by present case law," said Miguel A. Estrada, a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher, at another Supreme Court discussion. "So I think it would be pretty dangerous to predict how this all comes out."

Even some of the circuit court rulings on the issue surprised some legal experts. In a 6th Circuit decision upholding the law's constitutionality, for example, Republican-appointed Judge Jeffrey Sutton joined the majority.

"Jeff Sutton is a very strong leader of the more conservative half of the federal judiciary and a very respected fellow," pointed out Paul M. Smith, a partner at the Washington office of Jenner and Block, at a discussion about the Court.

"I think [his opinion] will potentially have a significant impact on the way [the health care] case goes."

Published: Thu, Nov 17, 2011

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