Judicial review of national health reform’s individual mandate is thus far mixed, with some court rulings in favor and others against its constitutionality. In August, a split decision of a three-judge panel of the 11th Circuit Court of Appeals ruled that the individual mandate is not covered by the commerce clause. The Obama administration could have delayed health reform’s inevitable move to the highest court in the land, but decided against asking for a full circuit court review of the panel’s decision. This could mean a Supreme Court ruling by June 2012.
Why the President decided against the move is not entirely clear. He might have been worried the court would have refused the full review. While the 11th circuit is roughly split in terms of appointments, perhaps the administration feels there could be a better outcome at the Supreme Court. And while conventional wisdom suggests that delaying a high court ruling until after the presidential election is best for Obama, the President could be banking on a positive ruling on the mandate that could be at least a small shot in the arm for his re-election campaign. At any rate, look for one of those 5-4 rulings, with Justice Kennedy playing Solomon.
On a related note, opponents of health reform are likely to pounce on a just-released study from the Kaiser Family Foundation that shows that employer spending on health coverage for workers went up markedly in 2011. While 2010 health cost increases were modest, average employer cost for family coverage increased by 9 percent. Family coverage premiums now have hit $15,073 on average, with individual coverage at $5,429. Inflation for individual coverage was slightly less. And two actuarial and accounting firms are projecting increases of 5 to 9 percent next year.
Now, increases in the employer market are subject to many vagaries and outside forces not always related to actual health care inflation. And, if truth be told, health reform has added little right now to the total cost of health care. The major mandates and concomitant cost increases will come in 2014 with the introduction of essential benefits and all sorts of mandated coverage. But with the election season in full swing, we are not sure the subtleties are what will matter.