- The Washington Times - Thursday, February 17, 2011

ANALYSIS/OPINION:

While lower courts wrestle over the constitutionality of Obamacare, nearly one-sixth of the economy hangs in the balance. The plans of doctors, medical students, hospitals, clinics and millions of employers will change based on whether the health care law stands or falls. The Supreme Court needs to step in and resolve the doubt.

So far, two federal district judges have ruled Obamacare’s individual mandate unconstitutional, while two others have ruled the opposite. More challenges are in the offing in different parts of the country. Each new case and each new ruling merely confuses the issue. While it is rare for the high court to accept a case before it has reached a federal appeals court or a state supreme court, the current circumstance is compelling.

A majority of the states have issued a formal challenge to a federal statute, something in itself that does not happen often. The question then becomes, according to the high court’s own rules, whether “the case is of such imperative public importance as to … require immediate determination in this court.”

As Virginia Attorney General Kenneth T. Cuccinelli II argued, his state is “forced to devote considerable resources now to meet the requirements of a congressional enactment that this court may find invalid.” Those requirements are steep. If Obamacare stands, then Virginia would have to “develop a high risk pool or default to the federal government, overhaul its insurance laws, and create a health benefit exchange.” None of these tasks can be completed overnight or at little cost - and funds so expended cannot be recaptured.

Everyone knows that the various cases challenging Obamacare will eventually land at the steps of the Supreme Court. As Mr. Cuccinelli noted, the issue at hand is one of “pure issues of constitutional law on the merits.” Intermediate appeals will only delay the inevitable without providing clarity or certainty.

The November elections were in many ways a referendum on Obamacare. In fact, literally so as voters last year in Arizona, Oklahoma and Missouri rejected the individual mandate with as much as 71 percent of the vote. It’s only a matter of time before Mr. Obama loses his veto pen and lawmakers have a clear shot at repealing Obamacare. The Supreme Court ought to do its best to limit the damage until that happens.

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