Health care process speeds up
on Oct 19, 2011 at 1:37 pm
The lawyers have done their part to speed up the Supreme Court’s calendar on the major constitutional controversy over health care; that leaves it to the Justices to decide whether to do the same. It has appeared, for some weeks, that the Obama Administration’s biggest domestic initiative could face its ultimate test — and a final ruling — before the Court recesses the current Term late next June. But the lawyers have now practically guaranteed that timetable. As a result, the Court may take its initial look at the issue as early as November 10, although that is not yet set. (A post on Tuesday describing the latest filings by the attorneys can be read here.)
The Court’s schedule each year has a predictable rhythm to it, and that usually means that even important cases tend to move along at a fairly relaxed pace. But the Justices can choose to act with unusual speed, if they are of a mind to do that and the lawyers cooperate so that it can. Recall, for example, that the constitutional fight over who won the Presidency in 2000 (Bush v. Gore) took only 36 days, from start to finish, with two separate trips from the lowest courts to the Supreme Court.
The health care controversy is not moving at anything like that speed. The challenges to the new law have been unfolding in lower courts since March of last year, right after the President signed the measure into law. But, because the lawyers have been eager to get a final Supreme Court ruling promptly, after the lower courts had examined the law on expedited schedules, they have cut at least a month off of the normal schedule, and maybe as much as six weeks. It is already clear that the Court, at virtually any time now, could put on its Conference agenda the three pending petitions that seem to have the best chance of being reviewed: the tests of various aspects of a ruling last August by the Eleventh Circuit Court.
All sides in that controversy agree that the core constitutional issues raised should be considered by the Justices, and the fact is that those three petitions contain within them all of the issues that the Justices may want to consider. And that accounts for the building speculation that the Court may take its first look as early as its November 10 Conference. An order granting review then almost certainly would mean that the controversy would come up for oral argument sometime in March, at the latest — giving the Justices ample time to decide, however difficult that challenge might be, before the summer recess.
That timetable, of course, would have the Justices decide the fate of the Affordable Care Act in the very midst of a presidential and congressional election campaign — a political season during which that very law is a very hot topic of disagreement, about the role of the federal government in dealing with social issues. Indeed, nothing may more typify the dominant themes of the 2012 federal campaigns than the challenge to, and defense of, the federal government’s powers to provide a social safety net. For a historic parallel, one may think of the 1936 campaign that was a demarcation line between a traditional devotion to small government vs. the new attraction of governing power to Washington.
The mere fact that the Justices may well help shape the 2012 debate, by the way they rule on the ACA, is probably not enough by itself to deter the Court from going ahead to decide the controversy. If the petitions are ready for review, early enough in the Term, they will be decided during the Term.
The Court currently has six petitions before it; four appear ready for distribution now to the Justices’ chambers. The other two may reach that stage early, too, but the Court need not wait for them.
One might pause to ask whether, in fact, the Court is going to accept any of these filings for review, or simply deny them all — an option that is open to it. Here is why it is next to inconceivable that they would deny review: major parts of a very important federal law have been ruled unconstitutional in a lower court, the lower courts are explicitly in conflict on that point, the parties on all sides of the case support Court review (and that includes the U.S. Solicitor General’s office, which has major influence with the Court), and lawyers with powerful reputations as Supreme Court advocates are on all sides of the controversy, offering the potential for strong briefs and superb oral arguments.
Whichever petitions might be chosen for review, it now seems likely that the Court will agree to review these three constitutional questions:
1. Is the ACA’s requirement that virtually every adult American obtain health insurance by the year 2014 unconstitutional, as beyond Congress’s power, either under the Constitution’s Commerce Clause or its taxing power under the General Welfare Clause?
2. Does a federal law, the Anti-Injunction Act, bar any challenges to the insurance-purchase mandate, on the theory that it is part of federal tax law, which cannot be blocked before it goes into operation? (A separate part of that question is whether the Act’s ban on pre-enforcement challenges to tax laws does not apply to states as challengers.)
3. If the insurance mandate is struck down, must all of the ACA be nullified, on the ground that that provision is critical to the overall law’s operation? (If the entire law does not fall with the demise of the mandate, a question would then arise whether specific parts cannot survive.)
The parties are in agreement that those are the core issues the Justices need to decide. Beyond those, the pending petitions raise issues about a mandate to expand the coverage of the federal-state program of Medicaid for the poor and the disabled, about new insurance coverage obligations on employers, and about who has a legal right (“standing”) to have filed a constitutional challenge to the mandate or to other parts of the law. The federal government and 26 states are sharply divided on whether the Court should decide the first two of those; various parties take differing views on the standing-to-sue issue. There is, though, no doubt among the parties that at least some of the challengers were properly in court.
The fact that the Court has six separate petitions on the ACA and its various provisions is not a serious complication for the Justices as they ponder which cases to take. The Court has had multiple appeals on important issues before it previously, and has had little difficulty organizing its review in a manageable way.
The most recent example is the Court’s handling of 12 separate appeals, in 2003, involving a multitude of constitutional challenges to a 2002 federal law, the Bipartisan Campaign Finance Reform Act. The Court simply accepted review of all of them, sorted out on which side of each issue the challengers and defenders were to line up, and then scheduled four hours of oral argument — four times the usual 60-minute hearing — to give it time to examine the whole array of disputes. The Court accepted the appeals — under the general title, McConnell v. Federal Election Commission [docket 02-1674] — on June 5, 2003, near the end of a Term. It held the hearing on the following September 8, with eight different lawyers coming to the lectern, and decided the controversy in a widely splintered decision on December 10, 2003. (The lengthy docket entries for that decision can be found here.)
Among the lawyers appearing then was Paul D. Clement, then the U.S. Solicitor General, who very likely will be before the bench in the health care argument. He is now in private practice in Washington, D.C., and is the lead lawyer for the 26 challenging states. His main adversary could be the present Solicitor General, Donald B. Verrilli, Jr.