Obamacare's mandate: Why it's closer to a Supreme Court ruling

A key part of President Obama’s health-care law – a government mandate that anyone who can afford private health insurance must buy it by 2014 – is now ripe for a ruling by the Supreme Court.

On Friday, a federal appeals panel ruled against the mandate – only a few weeks after another appeals court ruled in favor of it. Rarely does the high court wait to resolve conflicting decisions among the regional appellate courts – especially on a hot-button issue like the 2010 Patient Protection and Affordable Care Act.

The latest ruling, coming in a 2-to-1 decision by a panel of the 11th Circuit Court in Atlanta, provides the strongest legal arguments yet for what could be a similar Supreme Court ruling against the mandate, perhaps by early next year.

The panel’s majority found the mandate violates the limits set on Congress by the Constitution and previous court rulings – limits that are “first principles,” or those designed to protect individual liberties, the right of judicial review, and the powers granted to states.

If the Supreme Court concurs, lawmakers would need to find other ways to finance universal health care. In writing the law, Democrats sought to finance it largely by forcing the young, the healthy, and those who rely on nonmedical means for health into buying private insurance. With millions more swimming in the risk pool, insurance companies could, in theory, afford the law’s expensive requirements on expanding coverage.

But now several lower courts have found this scheme defies common sense about the federal government’s defined and limited role in regulating interstate commerce.

As Friday’s ruling stated: “Individuals subjected to this economic mandate have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government.”

The ruling also argued: “Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority. Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.”

Such arguments in favor of health-care choice, however, are limited by what courts can do. Judges are well equipped to defend liberty, but what is missing from this debate is an affirmation of just how much Americans and others have learned in recent decades to take more responsibility for their well-being – including whether to choose a government health program.

As the medical industry has advanced in the past century, so too has the recognition that a person’s thinking – including prayer and a spiritual understanding of life – is key to one’s well-being. About 38 percent of Americans use alternative or complementary means to traditional medicine, according to the National Institutes of Health. And the use of prayer for health rose by more than a third between 1999 and 2007, according to a study published by the American Psychological Association.

The mandate – which threatens a penalty for those who don't comply – runs counter to such a trend.

The Supreme Court could well end the mandate simply for its violation of the Commerce Clause of the Constitution. But in so doing, the court (and Congress) should also support this long-term trend toward people taking charge of their health – and not having others make decisions for them.

As Justice Anthony Kennedy wrote in a 1992 Supreme Court ruling involving abortion: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Justice Kennedy may provide the pivotal vote if the high court takes up the mandate case. He has long been a champion of protecting dignity and autonomy in “the most intimate and personal choices a person may make in a lifetime.” And nothing is more personal than choosing one’s own means of health.