In our opinion: Affordable Care Act: Clarification please

Published: Wednesday, Feb. 2 2011 12:00 a.m. MST

In this June 8, 2010, file photo, President Barack Obama listens as Health and Human Services Secretary Kathleen Sebelius speaks in Wheaton, Md.

AP Photo/Alex Brandon, File

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On Monday, a federal district court in Florida ruled on behalf of 26 states, including Utah, that the Patient Protection and Affordable Care Act's mandate to purchase health insurance is unconstitutional because it exceeds Congress' power to regulate interstate commerce. The court went on to find that the insurance mandate is so central to the overall reform that the entire act is unconstitutional.

There is some question among legal analysts about the immediate practical effect of this ruling for the implementation of the Affordable Care Act in the 26 states represented. But what is clearer than ever after Monday's ruling is that the Supreme Court will need to resolve the issue of health care reform's constitutionality.

Consequently, we call on Health and Human Services Secretary Kathleen Sebelius to expedite appeal of this case. There is some indication that HHS might strategically delay appeal to let the plaintiff states squirm in the wake of wholesale invalidation of the legislation's more popular provisions, such as facilitating insurance for uninsured children with pre-existing conditions.

This, however, is not the time to play games — and the history of litigation during the New Deal is instructive on this point.

President Franklin D. Roosevelt called the National Industrial Recovery Act of 1933 "the most important and far-reaching legislation ever enacted." The NIRA attempted unprecedented regulation of the American economy through a maze of quasi-public standards of fair competition. Although huge in scale and scope, it passed through the New Deal Congress as emergency legislation in less than a month.

Even before it was fully implemented, the NIRA proved to be cumbersome and unpopular. As the inevitable conflicts over its implementation made their way into the courts, the Roosevelt administration was arrogantly dismissive of the judicial challenges. But Roosevelt could not dismiss the Supreme Court's 9-0 decision in the Schechter Poultry case in May 1935, holding that the NIRA was an unconstitutional delegation of governmental power and exceeded Congress's power under the Constitution's commerce clause.

In the immediate wake of that clarifying Supreme Court decision, the president and Congress passed a series of smaller but very important hard-fought legislative milestones that one might argue addressed concerns that NIRA was meant to deal with. Although piecemeal, they were better reasoned and capable of surviving constitutional challenge.

What one could forget nearly 80 years later, however, is the terrible economic, legal and organizational turmoil that existed between 1933 and 1935 under the constitutionally suspect NIRA. Hundreds if not thousands of competitive businesses like the Schechter Poultry Corporation were at threat of being shut down over technical violations to complex schemes that ultimately proved unconstitutional.

As much as the Obama administration would like to dismiss as unwarranted the mounting constitutional challenges to its cherished Affordable Care Act, federal courts now disagree in ways that add to the uncertainty that individuals, families and businesses are facing over the implementation of these reforms. The sooner that the Supreme Court clarifies these critical issues, the better.

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