Toobin: Fight over health care law will end up at Supreme Court
January 31st, 2011
03:01 PM ET

Toobin: Fight over health care law will end up at Supreme Court

[Updated at 10:28 p.m.] The fight over the health care reform law ruled unconstitutional by a federal judge on Monday will eventually be decided by the Supreme Court, said CNN senior legal analyst Jeff Toobin.

"This Supreme Court is very evenly divided between liberals and conservatives. Anthony Kennedy tends to be the swing vote. I would not be at all surprised that he would be the swing vote in this case as well," Toobin said.

"When you consider that this is the signature achievement of the Obama administration, and that it is hanging by a legal thread right now, it's a cause of great concern to supporters of the law."

Because the Florida judge ruled that the individual mandate, the part of the law that says everyone has to buy health insurance, is unconstitutional, “he says the whole law has to go out the window,” Toobin said.

Toobin said it is important to note that several federal judges have found the law constitutional.

"This is why we have a United States Supreme Court, to settle when judges disagree with each other," Toobin said.

The nine justices "have the last word," Toobin said. "Nobody can tell them what to do or when to do it."

[Updated at 5:37 p.m.] The U.S. Department of Justice says it plans to appeal the ruling of a federal judge in Florida, who earlier today struck down as unconstitutional key parts of the sweeping health care reform bill championed by President Obama.

[Updated at 3:47 p.m.] A federal judge in Florida has ruled unconstitutional the sweeping health care reform law championed by President Barack Obama, setting up what is likely to be a contentious Supreme Court challenge in coming months over the legislation.

Monday's ruling came in the most closely watched of the two dozen challenges to the law. Florida along with 25 states had filed a lawsuit last spring, seeking to dismiss a law critics had labeled "Obamacare."

Judge Roger Vinson, in a 78-page ruling, dismissed the key provision of the Patient Protection and Affordable Care Act - the so-called "individual mandate" requiring most Americans to purchase health insurance by 2014 or face
stiff penalties.

"I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and
Inequities in our health care system," Vinson wrote.

"Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time
when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled 'The Patient Protection and Affordable Care Act.' "


Filed under: Health • Health care reform • Politics • Supreme Court
soundoff (1,747 Responses)
  1. Katie

    I think Obama tried to deal with some of the injustices in the system – the preexisting condition clauses, red-lining and cherry picking to deprive the sick from benefits. I have insurance, supposedly good, yet I was denied a breast MRI. Wasn't necessary, they said. So nice that these for-profit insurance providers can decide what I need, over my doctor. I hope my next mammo doesn't show me riddled with cancer. I coudn't find a decent therapist "in network" to deal with my teen's issues, and boy do they slam you financially if you dare to leave their choice of doctors. I am developing arthritis so I looked up an "in-network" doctor, only to be told the wait would be 5 months before I could get an appointment. Our system stinks, it is only good for the elite and congressmen/women and senators. I love their Cadillac benefits. I would like to see them use mine for a day. Good luck with the fights and phone calls. I admire Obama for trying to do something about the health care disaster. You can be forced to pay into things whether you like it or not. Look at your pay stub, baby. FICA, etc. Don't come to the ER if you don't want to pay. I imagine cable TV, teeth whitening, nice cars and dinners out come first, right? There is assistance for the poor in the Obama plan. Yes there is. I have had periods of unemployment and paid the 700 a month for me and my kids to have insurance. I didn't view it like I had a choice.

    February 1, 2011 at 8:21 am | Report abuse |
    • thymat

      ........All your government has to do is turn to the North....It is a place called Canada........In 1966 a smart fellow named Tommy Douglas designed a healthcare system based on the European system that had been in place for over 100 years in some countries .......I am now 73 years old and have been able for very small monthly fees raise my family with full healthcare coverage over the years .......Now that my wife and I are up in age we enjoy FREE healthcare and we have has some very major pocedures and surgeries without having to wait, or to resort to selling our home or property...We never receive a bill or charge for doctor visits or emergency room use.........Believe me you can set a system like that up in the US very easy and it is NOT going to break the country.....Canada has 1/10th the population of the USA and its healthcare system has been operating just fine for 50 years........

      February 1, 2011 at 8:56 am | Report abuse |
    • Brandon

      Sounds like 1 you either need a new insurance agent that can describe to you the difference between and "HMO" and a "PPO" or you need to learn it yourself !!! Seriously, many options out there because you choose one that has set up regulations that you don'tlike and cry about it doesn't mean SQUAT. O .. and that saying your great grand father said .. "YOU GET WHAT YOU PAY FOR" still holds true.

      February 1, 2011 at 9:50 am | Report abuse |
    • Katie

      My employer pays approx. 1200/month for this plan, for me alone + kids. I know my plan, I wasn't given choices. There are things I don't like about it, and yes, I am crying because look at the monthly tab (for which I pay a % of). Only to be denied sevices, sent to poorly trained therapists, and wait forever to have a condition checked out. Doesn't that seem a little off-base to you?

      February 1, 2011 at 11:26 am | Report abuse |
    • Boater

      Yes, it does.... I am currently fighting my ins co to get a denial reversed on an operation that is required to save my life. Otherwise, the condition I currently have will continue to progress until it is life-threatening (which is about 6-9 months out). Once that happens, the chances that the surgery will even work will be greatly reduced. In other words, fix it now and I have a good chance. Fix it once it becomes life threatening and get the shovel out. Of course, that's what they want–to create a human super-race (sound familiar?). Kill off all of us who are sick and weak.....

      February 1, 2011 at 11:47 am | Report abuse |
    • PullYourStrings

      I also have insurance. It is government insurance. It has worked fine for me although I still have deductibles and co-pays for hospitalization, prescription drugs, doctors office visits. I also have a monthly premium deducted from my retirement pay. I also have to pay a yearly enrollment fee to stay in the program. It is called Tri-Care. I am a disabled veteran. When I turn 65 it turns into Medicare. Of course everyone will tell you that Veterans have free health care but nothing could be further from the truth. My "free" health care cost me almost $4,000 last year. I am lucky. I have insurance and I can NOT be cut off although all the surgeries and rehabilitation I went through cost "my insurer" well over a million dollars. Every citizen of the United States should have access to medical care on a routine basis not just the elite and the well off. Everyone. The cost of catastrophic care or critical care requiring hospitalization is far more expensive than routine care which has the capability of identifying potential health issues that could be curtailed before they get to a critical or catastrophic stage. The cost of seeing a Primary Care doctor on a regular basis, rather than utilizing Emergency Room Facilities for such things as a cold or the flu, is at least 8 times less expensive. Healthier people are not only happier people, but more productive. Anybody that has insurance is already bearing the cost of treating un-insured people that use emergency facilities. We pay through higher premiums and higher charges being submitted to the insurance carriers to offset the loss. Offsets like charging $32.00 for a Tylenol tablet from an emergency room, versus buying a bottle from a drug store for $7.00. I am all for Health care reform.

      February 1, 2011 at 12:03 pm | Report abuse |
    • crashtx1

      And what is the tax rate in Canada?

      February 1, 2011 at 12:07 pm | Report abuse |
    • john kesrouan

      The real injustice in Obamacare is that it cuts another 10% in Medicare reimbursements to providers to pay for 1/2 of this "reform". The real injustice in Obamacare is that it does nothing to curb medical inflation, quite the opposite, look at what's happening in Massachusetts. Insurance providers earn a small profit 3-6 percent and with the elimination of all pre existing conditions they will either have to go deep in the red or raise rates. My mechanic rushed in to get hip replacement surgery, last year it was fully covered, this year twenty thousand dollar co-pay. The real injustice in Obamacare is that it will reduce the availability of specialist care like hip replacements to pay for all the other stuff we should be paying for out of our own pockets, office visits, prescriptions, routine and ordinary care. and the real injustice with Obamacare is that he who pays cash for health care still will get to pay 2-10 times what insurance pays, this is the single greatest factor that makes health care so unaffordable to the uninsured and Obamacare did nothing to solve this.

      February 1, 2011 at 5:16 pm | Report abuse |
  2. Marge

    If they do repeal it, and they probably will since the court is loaded with conservative activist judges, maybe we'll finally get a chance at Sen. Dennis Kucinich health care plan where we can all buy into a single payer, not for profit, Medicare type plan. No insurance companies, no profits, no problem. Screw 'em all and the Repubs and cons, too.

    February 1, 2011 at 8:25 am | Report abuse |
    • cobra129

      Marge, you must not work or married to someone who doesn't work! If you did, how could you stay in business without profits? How could anyone get a paycheck without profits. Oh well, welfare doesn;'t need profits to operate,the government just takes and distributes. Sooner or later that supply will run out when no one is no longer making "profits."

      February 1, 2011 at 8:32 am | Report abuse |
    • Charlie

      I have no problem with this idea. However, I need choices. Higher deductibles for lower premiums. Also it should be on a per person basis. 1 person pays $3,000. Family of two pays $6,000, Family of three pays $9,000. No more ripping off of the single people.

      February 1, 2011 at 8:46 am | Report abuse |
    • johnharry

      just maybe we'll finally get a chance at Sen. Dennis Kucinich dental plan.

      February 1, 2011 at 9:21 am | Report abuse |
    • william jones

      All: if the health care bill is so good why has the administration granted several hundred waviers, mostly to the biggest campaign donors? If this bill is so good, why did the administration agrue the penalty for not buying insurance was not a tax when the bill was being considered but now argue it is a tax in front of the courts? If this bill is so good, why did then candidate Obama say he would not have a mandated buy in clause like Clinton was proposing but then signed into law a bill that did that very thing? If this bill is so good, how does it achieve the magical feat of adding 30 million to the health care rolls while decreasing costs and increasing quality of care? And for all those folks commenting on the goodness of their countries national health care system, I have one thing to say, look at the death rates from the mot common deadly diseases and you will find the evil, awful US system beats them all. Come on folks, face reality, this bill is a shame. Health care reform is needed, not redistribution of weath, which is all this bill does.

      February 1, 2011 at 9:39 am | Report abuse |
    • Michaelk

      For cobra129>>
      Profit is what is left AFTER expenses, such as salaries and whatever employee benefits you can afford. Many small businesses show little or no profit. Most are not like the High Profit holding companies for lawyers and doctors that hire no one and just give a highly paid professional a handy excuse for expensing personal spending.

      I find the statutory mandate bothersome, but Marge raises a strong point – COBRA, while technically discretionary, must be used to maintain coverage regardless of the cost. It becomes a pragmatic mandate and a foolish gamble if you skip it.

      February 1, 2011 at 9:40 am | Report abuse |
    • deedee

      There's more fraud in a govt run system than there is profit in a private system. Profit encourages accountability, though not perfect either. Some estimates are $60 Billion fraud in Medicaid.

      February 1, 2011 at 10:18 am | Report abuse |
    • Mike

      The average profit margin for Health Insurance companies is 3 to 4%. For Microsoft, its 24%, for Google, 20%, for Apple 40%, for soft drink companies 29%. Those greedy Health Insurance companies. How dare they earn 3 to 4% profit.

      February 1, 2011 at 10:50 am | Report abuse |
    • Igor

      "The average profit margin for Health Insurance companies is 3 to 4%. For Microsoft, its 24%, for Google, 20%, for Apple 40%, for soft drink companies 29%. Those greedy Health Insurance companies. How dare they earn 3 to 4% profit."

      Indeed, Health Insurance is only the 86th most profitable Industry out of list of 214. However, a lower profit margin is to be expected given the huge revenues.Moreover, the profit margin comes after admin costs, CEO salaries, marketing, lobbying expenditures, and other "costs". Even if the insurance industry was run as a not-for-profit organization, there would be a need to reform the system because of how money paid by policy holders is wasted.

      Of note, the third highest profit margins are by REIT Healthcare Facilities. .

      February 1, 2011 at 6:25 pm | Report abuse |
  3. Chedar

    I believed this judge wax appointed by Reagan. One that got " slip away" when Reagan was snoring on the job. How can this judge compare his decision from a broccoli to a health care reform. This judge is pathetic and dangerous. A broccoli is not a carrot stick looney tune guy.

    February 1, 2011 at 8:42 am | Report abuse |
    • Mike

      The Health Care law gives the government a new power that it has never had, the power to tell the individual how he/she will spend their private money or else be punished. If this new power is confirmed then there will be nothing to prevent the government from telling you how to spend your money. If the government has debt problems then it can make you buy government bonds with your money, after all its for the common good. The Health Care law opens a dangerous new door.

      February 1, 2011 at 9:29 am | Report abuse |
    • Michaelk

      Mike –
      They can only force us to do what our elected representatives want to do. In 2008, the mandate was for health Insurance reform. Now the mandate is for better health insurance reform. Lets hope everybody went to Civics class and understands how a democratic republic works (Facts and reason).

      February 1, 2011 at 9:43 am | Report abuse |
  4. Phil

    Nothing new here - Republican judges are sounding like right-wing extremists and left-wing judges are sounding like left-wing judges. Now if we could just hear from a balanced court, we might be able to get sound results.

    Those who are against, as they put it, to sound their racial best, Obamacare have not read the health care bill, have listened to idiots like Palin and Bachmann who haven't read the bill either but "found" death panels in it.

    February 1, 2011 at 8:51 am | Report abuse |
    • will


      When did you read th bill. Maybe you could post it so others can read it.

      February 1, 2011 at 10:08 am | Report abuse |
  5. jin

    how about getting rid of auto insurance too – lets not make it mandatory- DELAW IT!!!

    February 1, 2011 at 8:53 am | Report abuse |
    • MoreTaxPleas

      Please recite the FEDERAL law that forces you to have auto insurance.

      February 1, 2011 at 9:50 am | Report abuse |
    • PeathDanel

      Driving is not required by law – thus getting car insurance is not required by law. You don't have to drive. This is a false argument used by the same people who scream about the "death panel" comment. Funny – since the new insurance does address end-of-life decisions, there is more validity to the "death panel" comments than there is in the "car insurance" tack!

      February 1, 2011 at 10:04 am | Report abuse |
  6. T.O.

    The bill will stay. People didnt think this was going to happen. There are plans that are already drawn up to combat the Supreme Court hype.

    February 1, 2011 at 8:53 am | Report abuse |
  7. Linda

    Medicare and medicaid are the debt drivers. Plain and simple, they are driving up the debt more than anything else. The healthcare law aimed to fix this and it does. You can't just elminate a bunch of jobs in the discretionary portion of the budget, cut taxes, repeal the healthcare law, and expect good results.

    February 1, 2011 at 8:54 am | Report abuse |
    • TheTruth

      Lets just kill all the old people.

      February 2, 2011 at 5:35 pm | Report abuse |
  8. TBates

    Many states do not require people to carry car insurance. They must sign a statement sying they are financially responsible. The US health care was the best in the world for 85% of Americans, what Obamacare does is make it mediocre for 100% of Americans. This is the classic definition of social medicine. Try to make things equal and average.

    February 1, 2011 at 9:27 am | Report abuse |
    • K Edwards

      Best in the world? Are you smoking crack? We are ranked in the 40's in overall mortality, care and cost. Don't let FACTS get in the way of you waving the flag.

      Too bad stupidity is not considered a mental condition.

      February 1, 2011 at 9:36 am | Report abuse |
    • Michaelk

      Our health care is the most expensive on the planet. We get the least return on that investment on the planet. If you have the cash, you can get whatever you want. If you work for a living and have no or little insurance, you pray for good health or a rapid decline.

      What used to be a community resource has evolved into a profit driven enterprise with blood-stained dividends. There needs to be a middle ground.

      February 1, 2011 at 9:46 am | Report abuse |
    • TheTruth

      Health care plan is great for the middle class.. its about time someone helped the middle class. WTG OBAMA

      February 2, 2011 at 5:38 pm | Report abuse |
  9. lefty avenger

    Universal single payer health care is a human right for all american citizens. We need to start having Egyptian style rebellion against the corporate enemy of the people Hmo's and their republican fascist supporters!

    February 1, 2011 at 9:27 am | Report abuse |
    • Mike

      The price of everything is determined by supply and demand. Part of the reason that medical costs are rising is that the states and the federal government restrict the supply of medical services. Health insurance companies aren't allowed to compete across state lines and most states use central planning to decide how many medical facilities are allowed to be built. My state alone has prevented local hospitals from expanding into other areas of the county because the state in its infinite central planning wisdom thought there would be too many facilities. The new Health Care law greatly expands the demand but does nothing to increase the supply. In fact the new Health Care actually limits what services that can be offered. That's why nearly all of the unions that supported the democrats are asking for waivers from the law because they don't like the restrictions of the Health Care law. The government so far has issued over 700 waivers. So bottom line the Health Care law greatly increases demand and does nothing about supply, thereby increasing health care costs.

      February 1, 2011 at 10:15 am | Report abuse |
    • Amercaneedsrealists

      Why is that anyone from the left cannot look at things rationally. There is a better way to address our health care problems than this bloated bill. Unfortunately those who passed it would not allow any real debate so that the best possible solution could be achieved. It is just like the saying: well i have to do something even if its wrong. This type of thinking drives me nuts and it is rampant in our nation's capital.

      February 1, 2011 at 12:25 pm | Report abuse |
    • MrTeaPot


      You said, "The government so far has issued over 700 waivers." so I thought gee, what's this all about. I googled "obamacare waivers" and got 528,000 results. The strange thing is that in 20 pages of results not one of them is to a liberal newspaper like WSJ, NYT, Wash Post, Atlanta Journal. Instead all the results pointed to sites like: , , , which are pretty much all right wing blogs. This is obviously a major coverup.

      Do you think that this proves that the liberal news media bias conspiracy is more than a theory?

      The New York Post (well known for their balanced approach to news and journalistic standards) ran this story in October right before the mid-term election and right next to the headline, "Snooki gives Sen Shumer the Cold Shoulder".

      If you go to the Health and Human Services site:

      They do a pretty good job of explaining the purpose of the waivers and the methodology in approving them.

      Not only that but they have a listing of every waiver that has been approved. Readers should be forewarned that according to Fox News that this is super duper top secret stuff that is part of a conspiracy by President Obama to exempt only his supporters and personal friends from provisions of the "Job Killing Health Care Law".

      The list is very revealing, well known subversive socialist organizations like CIGNA, AETNA, Catholic Charities of the Diocese of Albany, Dr. Trailer Repair, Inc., North State Bank, Phoenix Children's Academy, NJ Society of CPAs, The Maritime Aquarium of Norwalk, Inc., Waffle House, and of course All American Heating and AC who have 21 employees.

      Yep, you are on to them now, this proves it Obamacare is flawed.

      February 1, 2011 at 3:47 pm | Report abuse |
  10. Ron

    I like the idea of deciding our health care options in the same way we have two children split a piece of cake – one child cuts the piece, the other gets first choice of pieces. So I say let Congress pass whatever health care plan they want (they are cutting the cake). That plan and Congress' plan are then put to referendum by the American public (we choose the first piece). Which plan is left is the plan Congress gets. If we had this, we would be assured that the weaker plan would still be very good because our politicians would not want a poor plan.

    February 1, 2011 at 9:41 am | Report abuse |
    • perry

      Do I agree with all of the bill no, but their some good to some of the bill. We need to addrees what is good and fix what is bad, but simply repeal and not have a backup plan will let the insurance win, and you know what they are going to do. State are failing because of people who don't have insurance have to pay there bill, and going to the emergency room iswell we all know is very very expensive. I wish we could have gotten the public option, it is like choosing between three banks the one with the better rate survives, but the other two banks have to get onboard with the bank that all the customers are choosing, this is called a public option forcing the insurance companies to lower their rates. The republicans set on their buts for 8 years and did nothing, are we now to believe they have suddenly grown a heart, I think not, a friend once told me, be careful what you ask for you just might get it. repeal and get nothing, but the insurance companies going back to hiking up the prices, dropping you for any little thing, and millions falling off the insurance board, and the states paying for their bills. This all leads to states going bankrupt and people losing their jobs.

      February 1, 2011 at 10:36 am | Report abuse |
  11. detada

    Replace the current health care legislation with a single payer system. Its what the administration should have pursued in the first place. The president opted for the current plan, developed with input from the insurance companies. Afterwhich, the insurance companies promptly poured money into their campaign to defeat the plan (republicans). Considering how insurance companies, for decades, have denied coverage whenever it is in their best interest, no one should be surprised at this behavior. The administration should have provided for a government option (single payer system) as this would have put more pressure on the insurance companies to do the righteous thing.

    February 1, 2011 at 9:44 am | Report abuse |
  12. MoreTaxPleas

    Mortality rates do not take into account death by glutenous life style. Mandated health insurance will not cure obesity and other life style diseases,disorders. using mortality statistics is fear mongering. How about showing statistics on cancer survival rates.

    February 1, 2011 at 10:04 am | Report abuse |
  13. mike

    When we live in a global world and information moves at lighting speed the old way of doing politics is out the door in reality the repubs if they have there way will not do nothing to change healthcare and we will continue to fall behind further in competing with the rest of the world because benefits will be to costly for small business to attract talented people larger companies do not want to compete with smaller ones for talent they like to use the FEAR factor that we come to love so much like your lucky you have a job that keeps cost down and profits up BANKS control the money insurance companies control the benefits do you get the picture

    February 1, 2011 at 10:26 am | Report abuse |
    • coffegirl


      February 1, 2011 at 11:01 am | Report abuse |
  14. RobertFTL

    You would think health care reform would be welcomed when 1/3 of our nation is considered morbidly obese. If anything it is a threat to our national security. I think your opposition is not only slack-jawed yokels like Cletus but the millions of Americans who consider a large pizza as an appetizer. What happens when we can’t enroll enough Americans to defend our country because they are too fat and unhealthy? Will the GOP then decided to cut our defense budget?

    February 1, 2011 at 10:32 am | Report abuse |
    • Amercaneedsrealists

      With your way of thinking, what's next the food police. No thanks I want to live my life with less government intrusion. Its what I want for my 3 daughters as well. What is wrong with many of the people in this country, I think the blame everyone but me for my problems crowd has taken over......sad

      February 1, 2011 at 12:30 pm | Report abuse |
  15. Steve Lyons

    Solving one injustice (insurance business practices) with a bigger injustice (totalitarianism by government mandate) is NOT the key to good government. Look at Egypt. The Federal government's job is to 1) defend the states from attack (illegal immigration is a failure by the fed), 2) PROMOTE the general welfare, by creating treaties that grow US based jobs and employment (not encourage off shoreing).

    Once they wrap their heads around those two, a lot of other injustices will diminish.

    Full employment means people CAN afford insurance. Off shoring jobs increases welfare needs, reduced employment opportunities, and makes health care unaffordable.

    February 1, 2011 at 10:38 am | Report abuse |
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