Bench Memos

The Health Care Litigation — What Comes Next?

Today’s district court ruling invalidating the individual mandate has tremendous significance.  Among other things, it will make it much more difficult for defenders of the law to treat arguments that the mandate is unconstitutional as frivolous or extreme, as a federal court has now concluded otherwise.  Given that federal judges are generally reluctant to strike down federal laws (as they should be), this decision could also give other judges considering parallel suits more confidence in their convictions.  

Ultimate victory against the individual mandate is still a long ways off, however.  This decision will be appealed, and there are other suits underway.  Oral argument in the Florida case is scheduled for Thursday.  Moreover, the federal judge found the individual mandate to be severable from the rest of the health care reform law.  This means that while the individual mandate has been struck down, the rest of the law remains in place.  Insofar as there are other troubling aspects of the law, it will be up to Congress, not the courts, to set things right.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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