Two or three years ago, there was never even a question about the constitutionality of the so-called “individual mandate,” the requirement that people should have health insurance. There were (and remain) political and policy questions. In the debate over Governor Schwarzenegger’s proposal in 2007-8, and in the federal reform discussion, we had questions about its workability and feasibility, and importantly its affordability. But the consensus among legal scholars was that it was well within constitutional grounds.
Opponents of health reform in general highlighted a constitutional critique, and with the political debate becoming so polarized, it perhaps shouldn’t have been a surprise that Republican-appointed judges started ruling against the individual mandate (and in one case, against the law as a whole). But it’s still strange, given that the policy was something that the very conservative Heritage Foundation supported not too long ago.
Today’s ruling is noteworthy because it’s another conservative justice supporting the individual mandate’s constitutionality. It’s becoming more likely that the Supreme Court not only affirms the Affordable Care Act (as now many appeals and district courts have done), but that the vote won’t be a 5-4 close call but a more comfortable margin.
Anything is possible, especially in a polarized political environment, but things are looking more positive on the legal front.