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WASHINGTON – Senate Majority Leader Harry Reid (D-Nev.) and House Democratic Leader Nancy Pelosi (D-Calif.), along with 21 other Democratic leaders, have filed a legal brief in a Michigan court defending the constitutionality of the right of Congress to require every American to buy health insurance.
This case is significant because it's the first of 26 such challenges to the Affordable Care Act to reach the appellate court system.
A handful of district judges have ruled on the case so far, with one against and two for the constitutionality of the mandate. Two others dismissed or partially dismissed the cases. The case has so far been denied by the Supreme Court.
Timothy Stoltzfus Jost, a Robert L. Willet Family Professor of Law at the Washington and Lee University School of Law in Lexington, Va., and a speaker at the recent National Congress on Health Reform in Washington, D.C., said he believes the Supreme Court is waiting to see how the appellate courts rule before deciding whether to review it.
Opponents of the ACA argue that if the mandate is successfully refuted in the court system, the entire law would be rendered void. Defenders say even if the courts rule the mandate unconstitutional, it would be possible to cut just that portion from the law. Jost said he believes the ACA could still be implemented without the mandate, if need be.
Speaking at the National Congress on Health Reform, Christopher Jennings, president of Jennings Policy Strategies and former senior healthcare advisor to President William Clinton, called the lawsuits "a real threat" – but not in the long haul.
"If you take away the mandate, you take away aspects of ACA that people care about, including health insurance reforms," he said. If that happens, he said, the broad host of stakeholders supporting the law will push back in its defense.
Every month that goes by the ACA becomes "part of the fabric" of the U.S. healthcare system, making it harder to repeal, Jennings said.
"This issue is expected to stay red hot right through the 2012 election," said Henry Aaron, senior fellow of economic studies at the Brookings Institution and chairman of the National Academy of Social Insurance in Washington, D.C.