Wednesday, September 28, 2011

Why Fast Track Health Care Reform To The Supreme Court?

While most legal observers believe, especially given the split among the circuit courts, that the Supreme Court will ultimately decide health care reform's fate, the Obama's Administration appears to be in a hurry to find out. 

Last month, by a 2-to-1 vote, a three-judge panel of the 11th Circuit Court of Appeals ruled that the Affordable Health Care Act's individual mandate, i.e., the requirement that everyone obtain health insurance, is unconstitutional, although it upheld the remainder of the law's provisions.  (The Sixth Circuit has ruled that the Act is constitutional in its entirety and the Fourth Circuit dismissed Virginia's challenge for lack of standing.)

The next step would normally be to seek rehearing by the full 11-judge (en banc) panel of the 11th Circuit, which likely would have delayed any Supreme Court decision until after the 2012 presidential election.  The Justice Department, however, just announced they would forgo en banc review and take the case directly to the Supreme Court (which has discretion to take the case or not).

Why?  Sarah Kiff at the Washington Post suggests three reasons:  (1) the fear that if they delay and Obama loses the 2012 election, a Republican-led Administration would take a contrary position and challenge the act's constitutionality; (2) rehearing en banc could be denied anyway, and given the majority of Republican judges on the 11th Circuit, a decision by the full panel could make the decision worse; and (3) seeking rehearing would make the White House look as if it were stalling; pursuing a faster timeline displays confidence.

In my opinion, these explanations don't hold water.  First, I can't see the Justice Department considering a loss by Obama in 2012 as part of its legal strategy.  Besides, if the GOP wins the presidency and likely with it the Congress, they will repeal health care reform anyway.  The second reason makes more sense.  There really is no downside if the 11th Circuit denies rehearing, although if it did take up the case, an adverse en banc opinion might provide more persuasive force than one by a 3-judge panel.  I'm not sure, however, it would make a significant difference in the Supreme Court, which will ultimately decide the underlying issues regardless of the lower court's reasoning.  As for the third reason, the appearance of foot-dragging is simply not a reasonable factor for failing to pursue a legitimate avenue of appeal in the circuit.

Tom Goldstein at SCOTUSBlog believes the Administration is motivated less by politics and more by the need to more expeditiously resolve the issues surrounding this complicated statute so that federal agencies can fully implement whatever health care provisions are ultimately upheld.  

Goldstein may be right that "the government tends to act in its institutional interests first, and the interest of a particular Presidential Administration second," but I think Obama has made a political calculation.  My guess is he has determined that legal precedent is on their side, and that the Affordable Care Act will be upheld in the Supreme Court, thereby defusing a Republican talking point and providing an enormous boost to the political campaign.

The problem, of course, is that the right wing majority of the Court has proved itself perfectly willing to throw aside well-established legal principles when they interfere with their underlying political goals.  (On the other hand, as Dalia Lithwick writes, the Court may seek to avoid the controversy altogether, and is unsure there "are five justices at the high court eager to have the court itself become an election-year issue.")

It will be fascinating to see what Obama and the Democrats do if the law is tossed out.  Public option anyone?


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