U.S. Supreme Court might decide

For this showdown, two things would need to happen:

1. Congress passes federal health care reform legislation that includes a mandate requiring individuals to purchase health care insurance.

2. Kansans approve a state constitutional amendment countermanding the mandate.

Who would win? It’s a question two local constitutional law professors say could be decided by the U.S. Supreme Court and have far-reaching effects.

“The primary point of conflict would be the individual mandates in the health care initiative that the Obama administration is pushing,” said Kris Kobach, University of Missouri-Kansas City. “The (state) amendment (Sen. Mary Pilcher-) Cook and others are supporting would basically create a Kansan’s right not to be forced into the health insurance market, preserving the individual’s right to stay out of the market if she or he wants to.

“There’s where the conflict would occur and it would set up a court case, assuming that both things pass.”

Tom Stacy, University of Kansas, said the question is whether Congress has the constitutional authority to require individuals to have health insurance. The U.S. Constitution’s Commerce Clause gives Congress the authority to regulate commerce among the states and he said that has been broadly interpreted by the High Court since President Roosevelt’s New Deal in the 1940s.

“A key question for purposes of evaluating whether an individual mandate would be within Congress’ constitutional authority to act would be whether the purchase of health insurance is a commercial activity,” Stacy said. “And I would think it would be.”

Kobach said Kansas could prevail.

“There’s a long, long line of cases in the commerce power area,” Kobach said. “But the interesting thing about this is that the federal government never before has tried to force private Americans to purchase something; that’s why this would be an unprecedented use of the commerce power and I think it would be difficult for the administration to win in court.”

Stacy said he thinks the U.S. Supreme Court would uphold Congress’ authority to mandate individuals to purchase health insurance under the Supremacy Law in the U.S. Constitution that allows federal statutes to prevail against state laws.

“If Congress commands the state to do something and Congress is within its power to do so, then the states have to follow suit,” Stacy said. “So under the Supremacy Law, Kansas can adopt a constitutional amendment, but it’s symbolic only and it wouldn’t have any legal effect.”

Both said if the federal mandate and the state constitutional amendment pass, it’s likely a lengthy legal battle would ensue.

“The wheels of justice would grind slowly,” Kobach said. “If Kansans passed the amendment in (November) 2010 and you’re talking a two-year course to the (U.S.) Supreme Court, now you’re talking a decision possibly in 2012 I would imagine.”

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