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Mandate flunks exam

The 11th U.S. Circuit Court of Appeals has dealt a blow to the federal health care reform law. If a three-judge panel's decision stands, the prognosis for survival isn't good for the provision that forces Americans to buy health insurance coverage.

In a 2-1 decision Friday, the Appeals Court judges ruled that Congress doesn't have the authority to force a U.S. citizen to enter into a contract with a private company.

In a dissent, the third judge on the panel said the power of Congress in regard to the Commerce Clause has, in fact, grown so much in the last two centuries that federal lawmakers do have the authority to regulate large chunks of the nation's economy, including health care.

The narrow margin of the decision is typical of the courts, which seem to be having trouble with consistent rulings on the health care reform laws. The 11th Circuit panel's decision is in opposition to one arrived at by federal appellate judges in Cincinnati. And district court level judges have ruled both for and against the law. Even the state level is nearly evenly split. Twenty-six of the 50 states -- including Georgia -- have contested the validity of the health reform law. The states who are suing to have the law tossed out are arguing that Congress is usurping the authority of the individual states.

The question now is how fast these appeals will make it to the final arbiter -- the U.S. Supreme Court.

Friday's ruling can -- and almost certainly will -- be appealed to the full circuit court. But regardless of what the full court decides, the legal road map is heading straight to Washington, D.C., and the nine justices, where it could again be decided by a one-vote margin.

There doesn't seem to be any way for the high court to avoid taking on this case. The 11th Circuit decision only affects the states in the circuit. But if the full circuit court upholds the panel's decision and other circuits rule differently, there will be uneven application of the law across the nation.

This probably isn't an issue the Supreme Court justices are eager to tackle. States have the power to require their residents to buy certain things. Georgia, for instance, requires its drivers to maintain automobile insurance. There has never been a ruling by the high court, however, stating that Congress also has this type of authority.

The mandated coverage is seen as critical to making the law work, though the 11th Circuit panel disagreed with some of the rulings by the district court judge whose decisions it was reviewing. The lower court judge ruled that the law was written so that the coverage provision was so intertwined with other parts of the law, such as allowing children to stay on parents' insurance plans until age 26, that the whole law was flawed. The appeals panel, however, said much of the law does not hinge on Congress's Commerce Clause claim as its authority to compel coverage.

The danger in not having a mandate for coverage but requiring insurance companies and exchanges to provide coverage to anyone who wants it is a person could decide to not maintain any insurance coverage, then, when diagnosed with an illness, apply for and get coverage. That would result in costs being paid by the insurer and others who already have policies with that insurer.

If the Supreme Court agrees that Congress has grabbed for power it doesn't have, the federal government could come up with a carrot and stick approach to steer Americans toward coverage, such as increasing premiums as time passes after a person is first eligible.

That method has been effective for getting seniors to sign up for Medicare Part B, though they are not required to sign up. Whether it would work as well with the overall U.S. population, however, is speculation.

The sad part of all this is that a great many people feel the U.S. should improve its delivery of health care and coverage. A less hastily, better understood reform plan that included the best ideas of both parties would have been a much better prescription for what ails our health care system. Instead, we have one that has many suspicious of hidden costs and burdens that they believe will surface after next year's elections.

Congress and the president, acting in the nation's best interest, could have come up with a plan everyone would have wanted, but politics got in the way. Again. And they wonder why their ratings are embarrassingly low.

Given that, it's in the nation's interests for the Supreme Court, when it does finally take up this health coverage mandate issue, to scuttle it.

If the Commerce Clause is interpreted this broadly in favor of federal lawmakers, there's no telling what Congress will mandate for us to buy next.