- The Washington Times - Tuesday, December 14, 2010


The U.S. Supreme Court should take the unusual step of bypassing various federal courts of appeal to consider whether the “individual mandate” in Obamacare is unconstitutional. It’s important that this action be taken soon because implementation deadlines are looming for major parts of the law. Some provisions, once in place, would be difficult to reverse.

The subject of expedited review by the Supreme Court arises in the wake of Monday’s decision by Federal District Judge Henry E. Hudson that the mandate is “neither within the letter nor the spirit of the Constitution.” Virginia Attorney General Kenneth T. Cuccinelli II, who brought and won the case, said Monday afternoon that he will ask the Justice Department to join him in requesting fast-track consideration under Rule 11 of the Supreme Court. If Justice won’t agree, he could request it on his own. Just as he was on firm legal ground in filing the suit, he would be right in asking the high court to step in. The Supreme Court also might combine it with a similar, multistate suit led by Florida Attorney General Bill McCollum, for which a different district court judge will hear oral arguments tomorrow.

Judge Hudson described the mandate as an “unchecked expansion of congressional power” that “lacks logical limitation” and “would invite unbridled exercise of federal police powers.” As Mr. Cuccinelli explained, if the federal government can force someone to buy health insurance, it could force him to buy “cars, gym memberships, asparagus, the list goes on. … There are better solutions than giving up your freedom. You can’t get that back.”

These considerations form the moral basis for requesting direct appeal to the Supreme Court. More than a moral imperative is necessary, however. Rule 11 allows the Supreme Court to bypass intermediate review “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination.”

A law that transforms one-sixth of the U.S. economy should qualify as having “imperative public importance,” especially if parts of it would be difficult to undo. “Immediate determination” is vital because many of the law’s provisions are activated in 2011. “Costs are being incurred on a daily basis,” Mr. Cuccinelli told The Washington Times. “And the economy is howling for certainty right now.”

One costly provision beginning Jan. 1 requires health plans to provide “rebates” to consumers if less than 85 percent of the premiums are spent on “clinical services and quality.” This attempted straitjacket on the market is counterproductive. Major companies will be unable to afford to offer plans favored by many consumers that provide fewer benefits for smaller premiums. This rebate requirement was the main reason McDonald’s announced it would drop 30,000 people from its health plans - until the Obama administration, showing raw political favoritism, granted the burger giant a waiver. Not every company will be blessed with a waiver, however, and many companies that abandon such plans may be unable financially to reinstate them afterward.

Numerous other provisions - including higher taxes on medical savings accounts and new requirements for state Medicaid programs - face similar deadline problems. The Supreme Court should resolve these issues before it’s too late.

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