As
reported yesterday, the Obama administration has petitioned the Supreme Court to review the 2-1 decision of the Court of Appeals for the 11th Circuit striking down the Affordable Care Act.
In a conference call with reporters, a senior Justice department official stressed that the government was appealing the case to the Supreme Court now, rather than asking the full 11th Circuit panel to review the decision, because of the importance of getting "a decision with finality and certainty sooner rather than later." He added that government agencies need that certainty to complete rules, the states need to begin to set up exchanges and insurance companies need to know what rules they will be operating under.
Adam Bonin noted one of the key issues explained in the call, the government's argument that "if the minimum coverage provision (individual mandate) is declared unconstitutional, then the community rating (no differential premiums based on health status) and guaranteed issue (i.e., cannot deny coverage based on preexisting conditions) provisions were inextricably intertwined with it, and should be stricken as well." That's a somewhat counterintuitive argument, telling the Justices, essentially, if you think the mandate is unconstitutional then the entire law has to be struck, instead of salvaging as much of the law as possible, should the mandate be struck.
The reasoning behind this could be about one Justice: Scalia. Eva Rodriguez touches on that in a post at WaPo's PostPartisan blog.
The four more liberal justices on the court—Ruth Bader Ginsburg, Stephen Breyer and Obama appointees Sonia Sotomayor and Elena Kagan—should have no trouble reading the Constitution as bestowing broad powers on the federal government to regulate all manner of commerce. Although the court in recent years has pinched back congressional efforts to use the Commerce Clause to promulgate laws prohibiting guns near schools and those targeting violence against women, these were clearly non-commercial activities and quite different from the health-care law and its regulation of the medical insurance marketplace. Stronger and more directly applicable precedents remain, in which the court blessed the government’s regulation of wheat and marijuana production because these activities had an impact on interstate commerce.
The marijuana case (known formally as Gonzales v. Raich) may be particularly important because two of the more conservative justices—Antonin Scalia and Anthony Kennedy—joined with their more liberal colleagues to uphold the law under the government’s Commerce Clause powers.
In this, Scalia's concurrence in Raich could be the key, because of his focus on the Necessary and Proper clause.
Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants.[...]
As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective."
That argument put forward by Scalia, that Congress "possesses every power needed to make that regulation effective," would apply to the mandate, making the community ratings and guaranteed issue provisions effective, and could be the argument that Justice will craft for the Court.