A copy of the health care reform bill served as a prop at a press conference on Capitol Hill in Washington, Nov. 5, 2009.

Luke Sharrett, Associated Press - Nyt


To read Judge Laurence Silberman's health care ruling, go to To read a quick profile of Silberman, go to

Editorial: Health care clarity needed from court

  • Article by: EDITORIAL
  • Star Tribune
  • November 16, 2011 - 7:02 PM

The U.S. Supreme Court could have -- and should have -- acted before now to take up one of the most important legal questions in the nation's history: whether a key provision in the 2010 Affordable Care Act is constitutional.

Instead, the justices proceeded at their usual stately pace while various challenges to the federal health reform law's individual requirement to buy health insurance inched through lower courts.

In the meantime, health providers and states were left with two unpalatable choices: They could invest the significant amounts of time and resources required to comply with the law's looming deadlines, knowing that it could all be for naught if the law or the insurance mandate is declared unconstitutional.

Or they could suspend preparations, knowing that they'll face an insurmountable amount of ground to make up if the law is upheld.

The Supreme Court's decision Monday to weigh in on the Affordable Care Act unfortunately still leaves providers and states in limbo for at least another seven months, allowing situations like Minnesota's health care exchange standoff between Gov. Mark Dayton and Republican legislators to simmer.

Dayton is forging ahead in building the online marketplace, while exchange bills have gone nowhere in the GOP-led Legislature, even as a key deadline looms in 2013.

Still, a ruling from the nation's highest court, expected next June, is welcome. And a decision in 2012 is preferable to one in 2013, 2014 or beyond.

The nation will be best-served if the court provides a definitive ruling instead of punting the issue to the middle of the decade, which could happen under one scenario involving a little-known tax law provision that the court will consider.

A measure called the Anti-Injunction Tax Act could prevent challenges to the insurance purchase mandate until 2015, when the financial penalties for not buying insurance, which could be considered a "tax," would first be due.

Clarity on constitutionality is needed, not three more years of bickering over a landmark law that will make sweeping changes to a critical economic sector touching everyone's life. The decision, no matter what it is, will pour gasoline on already volatile election-year politics. So be it.

The Supreme Court's measured pace appears to have strengthened the argument for the law and the mandate's constitutionality. The 11th U.S. Circuit Court of Appeals rejected Congress' authority to require consumers to buy health insurance.

But two other federal circuit courts have concluded that the mandate is within congressional authority to regulate economic activity under the U.S. Constitution's interstate commerce clause. It will be difficult for the Supreme Court justices, especially those in its conservative wing, to blow off these decisions.

Each circuit court has an iconic conservative judge: Laurence Silberman and Jeffrey Sutton, respectively.

Silberman, who wrote the majority decision for the D.C. Court of Appeals, also took aim at the "slippery slope" argument -- if Congress can compel a health insurance purchase, what else can it make consumers buy? -- undergirding the 11th Circuit Court conclusion.

Silberman was obviously troubled by the lack of limits on congressional authority, calling any mandate to purchase a product "intrusive.''

Still, Silberman concluded that the limits on Congress are political, not constitutional. In essence, politicians could require everybody to buy broccoli, but they likely would be thrown out of office.

It's clear that Silberman and Sutton aren't entirely comfortable with where their legal reasoning took them, but they got there, putting the law ahead of personal politics.

Their careful conclusions should inspire confidence about the judicial process in this highly partisan age, as well as the historic decision expected next summer.

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