The commerce clause is the problem. I do not see the SCOTUS saying this covered under that clause
Actually, it all depends on how the SC ultimately determines what the "pentalty" truly is - a pentalty, i.e., fine, or a tax. If a tax, the individual mandate will hold because ultimately Congress has the authority to lay taxes. And since no one can deny that private health insurance is a product one purchases at a cost, it is, in fact part of the marketplace and, therefore is commerce. From here, you really can't render health insurance "inner-state commerce" until two or more states create a joint or regional health insurance exchange. That won't happen under the health care law until 2014 when the law goes into full effect. However, the high risk pools, if formed jointly or regionally among two or more adjoining states, can set the precedence for inner-state commerce with private health insurance. If the lower district courts take this into account, it can and will change the dynamic of the legal discussion because the high risk pools being the initial "test platform" for the HIEs is part of the overall health care reform law AND people are paying into these HRPs (which are partically funded by federal grant money).
So, the bottom line is this: Is the penalty a fine or a tax? The Virgina state district court ruled that the so-called "tax" is a penalty and, therefore, Congress did not have the authority to mandate Virginia state residents to purchase health insurance. You can
read the ruling here (page 3).
While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate - and tax - a citizen's decision not to participate in interestate commerce.
...
No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce.
I haven't read the other rulings from Michigan or the other federal judge from Virginia, but I'm willing to bet they ruled in favor of the mandate because they saw the provision as a tax on inner-state commerce.
All I can say is this is going to be interesting because earlier in the year when asked by opponents of the bill if the "penalty" was a fine or a tax,
the Obama Administration said it was, in fact, a tax. If so, the states could lose especially if it is determined by the SC that the high-risk pools once formed between states AND proven to reduce health care cost OR improves the health of its participants is, in face, "inner-state commerce".
Get your popcorn ready...this is gonna be...interesting.
