Retired Law School Dean Reflects on Ruling

Symeon Symeonides — one of Salem's best-kept secrets.Symeon Symeonides pondered a moment, then said he had no idea how the U.S. Supreme Court would rule on the constitutionality of the Obama health care law, especially the individual mandate requiring every citizen to have health insurance. The high court will hear arguments in the case next week.

An internationally renowned constitutional law scholar, as well as one of Salem's best-kept secrets, Symeonides said it might be easier for states like Oregon to impose a health insurance buying mandate than for the federal government to do so. After all, he said, Massachusetts passed a mandate a few years ago and it appears to be working — though Republican presidential candidate and former Massachusetts governor Mitt Romney would rather kick the issue to the background. 

Symeonides and I, along with Willamette Law School's development director, Mike Bennett, sat down for a drink last week to reflect on the Supreme Court case, which stands to be one of the most significant in years, perhaps even rivaling the abortion or desegregation decisions. It was only about a week before Symeonides headed off to Brussels, where he will be working for several months to advise the European Union on how to draft a new constitution.

If states found the political wherewithal to impose an individual mandate — and Symeonides, ever an astute observer of political winds, thinks that could be a tall order — it might be easier legally because it wouldn't run up against the U.S. Constitution's commerce clause. Under Article 1, the clause gives Congress "the power to regulate commerce with foreign nations and among the several states, as well as Indian tribes."  The outcome of the court case rests, at least in part, on how current justices interpret the commerce clause and whether regulating commerce "among the several states" allows for an individual health insurance mandate.

The New York Times published an article last week, with the headline,  "At Heart of Health Law Clash, a 1942 Case of a Farmer's Wheat."

"If the Obama Administration persuades the Supreme Court to uphold its health care overhaul law, it will be in large part thanks to a 70-year-old precedent involving an Ohio farmer named Roscoe C. Filburn."

Seems that Mr. Filburn sued to overturn a 1938 law that told him how much wheat he could grow on his property and imposed a penalty on him if he grew too much. The Court ruled against Mr. Filburn, and that ruling serves as the pivot for what the justices will begin considering next week. The Times says interpretations of the Filburn case may form the basis for decisions by the two current-day justices who are considered the swing votes in this case, Anthony Kennedy and Antonin Scalia.

"To hear the Obama Administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution's [Commerce] clause to regulate the choices individuals make in matters affecting the national economy," the Times reported. "If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration's lawyers have said, it can surely tell people they must obtain health insurance or pay a penalty."

On the other hand, the Times adds, "Opponents of the law draw a different lesson from Mr. Filburn's case.  They say it set the outer limit of federal power, one the health care law exceeds."

For Oregon, as for every state, a lot is at stake in the Supreme Court case. The individual mandate lies at the heart of what many health care policymakers in Oregon, both in the public and private sectors, believe is the key step toward extending health insurance coverage to the more than 600,000 Oregonians who are not now covered.  With so many Oregonians either uninsured or unable to pay for health care treatment when they need it, the cost falls on the premiums of those who already buy insurance.

Estimates are that this cost shift increases private-sector bills by more than 20 per cent.

Those who are not involved in the legal interpretations playing out in the Supreme Court often point to laws in many states, including Oregon, that require individuals who drive to buy car insurance coverage. If they don't insure their car and they get in a wreck, they pay a penalty. The same, they say, should be true of health insurance — buy it or pay a penalty when you need health care you haven't paid for in advance through health insurance.

If the U.S. Supreme Court tosses out ObamaCare — or at least the individual mandate — it is possible Oregon could turn to a mandate as part of its health care transformation, following the example of Massachusetts. Politically, that could be difficult in a legislature with shared power between Democrats and Republicans.  First, however, Oregon will test a theory advocated by the state's health care governor, Dr. John Kitzhaber. He wants to create "coordinated care organizations" (CCO) and rely on them to get control of Medicaid costs while, at the same time, improving care.

At the moment, the CCO approach only applies to low-income citizens under the state's Medicaid program. So, on top of Medicaid reform in Oregon, watch for an individual health insurance mandate to be one of the next issues under consideration, no matter what happens at the U.S. Supreme Court.


The author, CFM partner Dave Fiskum, has represented health care interests at the Capitol in Salem for more than 20 years.