Legal fight expected over healthcare reform is only beginning

By Jason Millman - 12/19/10 08:45 AM ET

Both sides in the legal battle over healthcare have found reason to claim victory recently, but neither should pop open the champagne just yet, constitutional law experts said.

A number of challenges to the individual mandate have been weaving their way through the legal system since the reform law was enacted, but a resolution is still far away.

In the three district court cases that have been decided on their merits so far, supporters of the new law have a 2-1 edge.

Opponents of the new healthcare reform law were emboldened this week when a federal judge in Virginia ruled the law’s requirement that individuals purchase health insurance is unconstitutional.

Speaker-designate John Boehner (R-Ohio) used the ruling to go on the offensive, saying the Obama Administration, instead of appealing the decision, “should work with Congress to repeal this job-killing health care law so we can replace it with reforms that lower costs and protect jobs.”

However, reform law supporters were the ones celebrating in November and October when federal judges in two cases upheld the individual mandate.

“Nobody’s really right,” said Gregory P. Magarian, a Washington University School of Law professor.

The Supreme Court will have the final word, and the district court challenges are hardly a predictor of how the Supreme Court will decide, experts said.

“We’re sitting at Round 1,” Magarian said. “To say anything about how this is going to shake out in the final reckoning is pretty much impossible.”

Reform law opponents say Congress cannot compel people to purchase health insurance against their will. Supporters say an individual’s refusal to purchase insurance is an active decision that can be regulated, because every person needs healthcare at some point.

The White House has been quick to claim victory on its blog when a lower court rules in their favor. So far, about a dozen cases against the reform law have been thrown out on standing, while the individual mandate has survived challenges in Virginia and Michigan in cases decided by Democrat-appointed judges.

Meanwhile, Virginia Attorney General Ken Cuccinelli claimed victory after a Republican-appointed federal judge in Virginia struck down the individual mandate Monday.

"Today, a federal judge in Richmond ruled the individual mandate of the federal health care law UNCONSTITUTIONAL!" Cuccinelli wrote on his website Monday. "In other words – we won!"

However, the district court rulings so far will have little bearing on how the law is implemented. The individual mandate provision doesn’t kick in until 2014, and experts don’t expect the Supreme Court to hear a challenge on the reform law until 2012 – the timing of which will certainly play a major role in the upcoming presidential election.

It is still uncertain how many challenges will reach the Supreme Court, as is how the justices will rule on the individual mandate. Only one district court case has reached an appellate court, and the Obama administration said it would appeal Monday's decision. 

The Supreme Court will ultimately decide whether to hear multiple challenges or single out one, since they all challenge the individual mandate on the same legal basis. A challenge in Florida, which was filed by 20 states and generated dozens of high-profile friend-of-the-court briefs, may be the most attractive case for the Supreme Court to hear, said Steve Schwinn, a constitutional law professor at John Marshall Law School.

“The Florida one is probably the most likely to get more attention because it does involve so many states coming on board to challenge the law, including attorney generals and governors,” Schwinn said.

However, trying to predict how the Supreme Court will decide on the constitutionality of the individual mandate is more difficult, he said.

“It’s such an odd kind of question, one that the Supreme Court hasn’t really touched on in an way that gives us an indication,” Schwinn said.

Though the Supreme Court will eventually decide on the law’s constitutionality, the appellate court can still play an influential role.

“The worst thing that could happen for the [Obama] administration,” Magarian said, “is a really resounding, well-reasoned appellate court opinion that strikes the healthcare program down, maybe on a number of related grounds.”