With the conservative majority of the Supreme Court asking tough questions about the Affordable Care Act this week in Washington — and veteran court correspondent David Savage of the Los Angeles Times predicting that the justices “are poised to nullify the entire health care law'' — legal experts are debating what would happen to the Massachusetts law if some or all of its federal counterpart is struck down. At the center of that question is the constitutional validity of the “individual mandate,'' which both Massachusetts and the federal government use to require residents to purchase health insurance.
Brian Fitzpatrick, a Vanderbilt law professor, tells The Boston Globe that the justices could find the federal mandate unconstitutional because Congress may not have had the authority to create it in the first place. That argument, based on the Commerce Clause of the U.S. Constitution, wouldn't apply to the Massachusetts mandate, Fitzpatrick says, ostensibly giving the state some insulation from a similar legal challenge. “But you could make the argument that the law violates the individual rights of the citizens,'' Fitzpatrick tells the Globe. “You could make the argument that my rights as a citizen are violated when you force me to buy something.''
Others also see legal and political challenges to the Massachusetts law as likely if the Affordable Care Act is struck down, though it is unclear how effective those challenges would be. Massachusetts Attorney General Martha Coakley, a Democrat, has noted that the state measure has faced no serious legal problems in the six years it has been in effect, but that could change depending on the high court ruling. The Globe notes that political opponents could be emboldened to challenge the measure at the ballot box if the federal law is knocked down, even though polls have shown the Massachusetts program to be broadly popular among residents.
How the Massachusetts program fares legally and politically could play a role in this year's presidential election. Republican critics of President Obama deride the Affordable Care Act as “Obamacare,'' and they have long called it an unconstitutional power grab. But that line of criticism may be less effective since it was the man likely to be Obama's Republican opponent in November — former Massachusetts governor Mitt Romney — who signed the Massachusetts program into law in 2006. If “Romneycare,'' as many critics call it, is under the same kind of legal and political attack that has dogged “Obamacare'' since its creation, Republicans may have a tougher time making their case against the president.