NFIB, 26 states ask U.S. Supreme Court to hear health care challenge

By Jessica M. Karmasek | Sep 28, 2011


WASHINGTON (Legal Newsline) -- The National Federation of Independent Business, along with 26 states, filed petitions Wednesday to have their legal challenge to the federal health care law heard immediately in the U.S. Supreme Court.

The states and the NFIB are challenging the constitutionality of the Patient Protection and Affordable Care Act, which was signed into law by President Barack Obama in March 2010.

The NFIB, which represents 350,000 small businesses, is considered the nation's leading small-business advocacy organization.

The NFIB, in its petition for certiorari, seeks an "expeditious resolution" during the Supreme Court's upcoming term to the question of whether the new law should be entirely invalidated because the individual mandate exceeds the enumerated powers granted to Congress by the Constitution.

"The 11th Circuit ruling confirmed NFIB's view that the individual mandate in the health care law is unconstitutional. It is now imperative that the Supreme Court rule on whether the entire law can stand without the mandate," Karen Harned, executive director of NFIB's Small Business Legal Center, said in a statement.

The 11th Circuit, one of many appeals courts to rule on the issue, said in August that the $695 annual penalty assessed to individuals who do not purchase health care is unconstitutional. That ruling came in the multi-state lawsuit.

Harned says the sooner the Court takes up the case, the better -- for small businesses and individuals, alike.

"While the survival of the new health care law remains an open question, small businesses and individuals will continue to face uncertainty and trepidation, hesitant to hire or expand," she said.

"In filing our petition today, we are attempting to impress upon the Court the urgency of this issue."

The NFIB, in its petition, argues that the economic impact resulting from the current uncertainty in the health insurance market is already taking a heavy toll on both big and small businesses.

Many businesses, it explains, are currently in the process of making irreversible fiscal planning for the upcoming years.

The unknown potential costs of the new law are preventing many firms from growing or expanding, it says.

Attorney General Greg Zoeller of Indiana -- one of the states challenging the new law -- says it is both "appropriate" and "necessary" for the states to challenge whether Congress and Obama have an "unprecedented claim of authority within their enumerated powers under the Constitution."

The state attorneys general, in their petition, are formally asking the nation's highest court to decide whether it is constitutional for Congress to mandate private individuals to buy health insurance or face a financial penalty -- and if not, whether the entire health care law must be invalidated.

Zoeller says there is no question that the country needs a reform of the health care system.

"But this reform must pass constitutional muster; and the sweeping individual mandate must be put to the test before we open the door to Congress requiring people to buy other commercial products against their will," he said.

Currently, two federal appeals courts have ruled on the constitutionality of the individual mandate; one has upheld the mandate and another has struck it down. The lower courts also are divided on whether the rest of the law can survive if the mandate is unconstitutional.

Virginia Attorney General Ken Cuccinelli had attempted to bypass the Fourth Circuit and take his challenge straight to the Supreme Court but he was not successful. The Fourth Circuit recently ruled he lacked standing to challenge the mandate.

In August, the Third Circuit ruled that a group of New Jersey physicians did not have standing to challenge the law.

The Sixth Circuit ruled 2-1 in June for Obama, and the 11th Circuit's decision affirmed an earlier one by U.S. District Judge Roger Vinson, of Florida.

Eleventh Circuit Chief Judge Joel Dubina authored its opinion and was joined by Judge Frank Hull in the majority. Judge Stanley Marcus voted against the states.

"The individual mandate exceeds Congress's enumerated commerce power and is unconstitutional," Dubina wrote. "This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives."

In January, Vinson found that Congress was unconstitutionally regulating economic inactivity and, because the mandate is too integral a part to be separated, he voided the entire legislation. He called it a "difficult decision to reach."

The 11th Circuit's decision, though, did not void the entire legislation.

"Excising the individual mandate from the Act does not prevent the remaining provisions from being 'fully operative as a law,'" Dubina wrote.

Stephen Presser, a professor of legal history at Northwestern University's law school, weighed in Wednesday.

"The Patient Protection and Affordable Care Act (PPACA) is the boldest move yet by the federal government to regulate the lives of all Americans. In effect, it takes over one-sixth of the national economy. It flies in the face of the Constitution's structure of a federal government of limited and enumerated powers," he said.

Presser calls Vinson "exceptionally astute" for declaring that without the individual mandate the entire scheme of the act collapses and therefore the entire law, not just the mandate, should be declared an impermissible extension of federal power.

"Given that the proponents of the PPACA argued, when the Act was being debated, that the individual mandate was the cornerstone of the Act, if it is unconstitutional, then so is the entire Act," he said.

"If the 10th Amendment of the Constitution, which provides for a federal government of limited and enumerated powers, means anything, then the NFIB is correct."

Presser says this doesn't mean that health care for all Americans is not a vital concern.

"It only means that if we are to be faithful to the Constitution, the provision of that health care is a matter for the governments closest to the people, the states, and not for an insensitive and overweening group of officials in Washington," he said.

From Legal Newsline: Reach Jessica Karmasek by email at

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