November 11, 2011
This week, the U.S. Supreme Court deliberated whether to consider one or more federal court decisions on whether PPACA’s individual mandate passes constitutional scrutiny, but a D.C. Circuit decision by a highly respected conservative judge signaled that the law could very well survive Court's review. With a split in the circuits, the high court is considered likely to grant review (“certiorari”), but the ultimate outcome will likely hinge on whether any or all of the five conservative justices follow the view of D.C. Circuit Judge Laurence Silberman, one of the most highly respected—and conservative—jurists in the federal court system. In joining a 2-1 majority to uphold PPACA in Seven-Sky v. Holder, Silberman expressed concern that while the mandate appeared to be “an intrusive exercise of legislative power” and “an encroachment on individual liberty,” he said “it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his family,” each of which has been found to be constitutional. HR Policy has been among those pressing the Court to resolve the constitutional question one way or the other in order to resolve some of the uncertainty surrounding implementation of PPACA. In our amicus curiae brief to the Supreme Court urging the granting of certiorari, we stated that “the legal uncertainty surrounding PPACA makes health care strategy, design, and implementation exponentially more challenging” and arguing that “prompt resolution of the Act’s constitutionality, one way or another, will provide greater certainty and predictability in the health care reform process, which is needed for employers to move forward.” Yet, as discussed in the following story, even a victory in the Court does not ensure that PPACA survives intact.