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Informing Policy. Advancing Health.

The Supreme Battle over the Individual Mandate

Colorado Attorney General John Suthers has a front row seat for what may be one of the most exciting events in 2012. No, I’m not talking about the Summer Olympics, the end of the Mayan calendar or CHI’s 10th anniversary. I’m referring to U.S. Department of Health and Human Services v. Florida—the Supreme Court case that will decide whether the most controversial part of the Affordable Care Act (ACA)—the individual mandate—is constitutional.

Suthers opposes the individual mandate, which requires most Americans to purchase health insurance or pay a fine. He is joined by governors and attorneys general from more than two dozen states in a lawsuit to defeat it. The case will be heard in March.

Suthers, in a presentation sponsored by the Area Health Education Center at the Anschutz Medical Campus, spoke about the individual mandate and why he believes it is unconstitutional. Calling it the “most significant Supreme Court case since Brown v. Board of Education” in 1954, Suthers believes that the individual mandate, if realized, will jeopardize the authority of state governments and fears it may open a Pandora’s box of other federal mandates. Suthers says he wants everyone to have health insurance, but he calls the individual mandate an affront to the Constitution and says it is not within the Congress’ power. He cautioned it would render the 10th amendment—the principle of federalism — “meaningless.”

The individual mandate’s advocates disagree, arguing it is both within the federal government’s reach and important for the success of health insurance reform. The lower circuit courts have delivered inconsistent rulings, amplifying the appetite for the Supreme Court’s ultimate word, especially because there is a possibility it could strike the entire ACA due to an issue called “severability.” There have been requests for Justices Clarence Thomas and Elena Kagan to recuse themselves from the case due to perceived bias.

Suthers predicts the Supreme Court will reach a 5-4 decision finding the individual mandate unconstitutional. Suthers, according to his communications director, is not releasing a public opinion on how he thinks this will impact the rest of the ACA. Suthers does think that Justice Anthony Kennedy will be the swing vote, ultimately deciding whether the individual mandate, and perhaps the rest of the ACA, survives. The decision is expected in June—just in time for a presidential race!

CHI incorporates the impact of the individual mandate in several publications, including our latest workforce demand study, “A Half Million Newly Insured: Is Colorado Ready?”CHI will be prepared to provide insight and analysis during the Supreme Court hearings and after the ruling is delivered, so stay tuned!