When the health care law passed earlier this year, Democrats and Republicans had already been bickering for months over one of the central provisions of the legislation: the individual mandate. Can Congress, under the Constitution’s commerce clause, compel people to purchase health insurance? The fight was just one of many health care-related disagreements that have divided conservatives and liberals since the issue took center stage, but it’s the one major aspect of the new policy that gave Republicans an opening to take the Affordable Care Act to court.
Normally, a lawsuit challenging the scope of Congress’ power under the commerce clause would be open and shut — it’s been a perennial loser for plaintiffs going back decades. But in that time, the court has moved to the right, and become more partisan. And the early rulings in these health care lawsuits indicate what Republicans knew all too well — that Republican-appointed judges will be as sympathetic to their arguments as Democrat-appointed judges will be opposed. And that could presage several major victories for conservative foes of the health care law as their challenges make their way toward the Republican-leaning Supreme Court.
"It’s hard to avoid the conclusion that the courts are breaking down along partisan lines," says Timothy Jost, a professor at Washington and Lee University who’s been tracking the lawsuits closely.