The Obama administration has decided to appeal directly to the Supreme Court the Affordable Care Act challenge by Republican attorneys general from 25 states, including Florida, and one Democrat. However, support for the bill is unlikely with this politically appointed court.
In August, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled the individual mandate unconstitutional but allowed the rest of the law to stand. The ruling differed from a January decision by U.S. District Judge Roger Vinson, who, ruling in the case brought by Florida, said that "because the individual mandate is unconstitutional and not severable, the entire act must be declared void."
The Supreme Court may take up the case this month and could rule as early as June, in the middle of the presidential election. The whole law is at stake. Striking down all or part of it would take benefits away from people, but far more is at risk with a total overturn.
Howard Dean, a physician and former Democratic chairman, said the mandate is only 4 percent of the law. Without the mandate, the law could continue to cover citizens with preexisting conditions, allow children to stay on their parents' insurance until age 26, block lifetime benefit caps and expand Medicaid.
In Florida, the ban on lifetime benefit caps means that 8.8 million residents never have to worry about coverage running out. More than 86,000 children are now covered on parents' insurance. The law provides $351 million for uninsured Floridians with preexisting conditions and expands the solvency by nine years of Medicare, which covers more than 3 million Floridians.
The administration seems oddly confident that the Supreme Court will take its side on the mandate and the rest of the law. Don't bet the farm.
"There have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed," the Justice Department said in a statement. "We believe the challenges to the Affordable Care Act will also ultimately fail and that the Supreme Court will uphold the law."
The Justice Department's three examples do show that the court has backed federal power. An overriding national need for health care can be determined as part of the Constitution's "general welfare" clause and Congress' right to legislate funding. However, "The court is more polarized than it's been in easily a generation. We are looking forward toward years of 5-4 rulings," according to CNN legal analyst Jeffrey Toobin. Anthony Kennedy has taken over the role of "swing vote" since Sandra Day O'Connor retired in 2005, but it has become increasingly common for Justice Kennedy to side with the court's right.
The rest of the conservative bloc - Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia and Clarence Thomas - could be called "spoken for." Justice Thomas' wife emailed congressional chiefs of staff that she is "an ambassador to the Tea Party movement," which opposes the health care law. Instead of disclosing his wife's earnings from conservative groups, including one she heads, Justice Thomas checked "none" on the court's forms. The Code of Conduct for U.S. Judges says they "should not personally participate in public fund-raising activities," but in 2009 he was featured at a Heritage Foundation fund-raiser. The foundation opposes the law.
Conservatives made health care partisan because the law was such a signal accomplishment by President Obama. America is the land of opportunity. Will anyone be able to say that if Supreme Court conservatives deny citizens the opportunity to receive health care?