Yesterday, I published an op ed on the state of the individual mandate litigation in the Richmond Times-Dispatch:
When 21 states and several private groups initiated lawsuits challenging the constitutionality of the Obama health care law earlier this year, critics denounced the suits as frivolous political grandstanding. But it is increasingly clear that the plaintiffs have a serious case with a real chance of victory.
The suits focus primarily on challenges to the new law’s “individual mandate,” which requires most American citizens to purchase a government-approved health insurance plan by 2014 or pay a fine....
The judges considering the Florida and Virginia cases have both issued rulings rejecting the federal government’s motions to dismiss the suits and indicating that the mandate can’t be upheld based on current Supreme Court precedent. By contrast, Michigan district Judge George Caram Steeh wrote a decision concluding that the mandate is constitutional. But even he agreed that the case raises an “issue of first impression.”
The op ed focuses primarily on the recent district court decisions in the Virginia, Michigan, and Florida cases, which I blogged about in more detail here, here, and here. So there will be few new points for those who have closely followed my previous VC writings on the mandate litigation. My main purpose in the op ed was to briefly analyze the three rulings and explain why the anti-mandate plaintiffs have a strong case that could well prevail, even though they still face an uphill struggle.
I would add that the results of the recent election modestly increase the chances that the plaintiffs will win. Federal courts are unlikely to strike down a major federal policy initiative that has strong presidential, congressional, and popular support. But last week’s elections brought to power a House majority that opposes the Obama health care plan, strengthened plan opponents in the Senate, and reaffirmed that it remains unpopular (although the election turned primarily on the economy, the health care plan probably increased the magnitude of the Democrats’ defeat). A recent AP poll found that 52% of likely voters oppose the plan, with 41% supporting it, and strong opponents greatly outnumbering strong supporters.
Ideally, such “legal realist” factors should not influence judicial decision-making. But the historical evidence suggests that they often do. Judges are unlikely to strike down the mandate merely because the political winds are blowing against it. But those inclined to do so for other reasons are now less likely to be deterred by fear of a showdown with a president, Congress, and public opinion unified against them.