Why the Supreme Court should decline to rush to judgment on health reform.

The law, lawyers, and the court.
Feb. 25 2011 5:21 PM

Speed Trap

Why the Supreme Court should decline to rush to judgment on health reform.

Ken Cuccinelli.
Ken Cuccinelli

As soon as federal district court judges began to strike down the new health-reform law last fall, Republican state officials and the conservative advocacy groups behind the cases began agitating for bypassing ordinary review in the appeals courts and fast-tracking the cases straight to the Supreme Court. On Feb. 9 of this year, 28 Republican governors involved in one of these challenges wrote President Obama, asking him to order the Department of Justice to seek "an expedited appeal to obtain the Supreme Court's determination as soon as possible." Doing so would be a terrible idea for the states themselves, for the public, and for the legitimacy of the court.

The strategic calculus behind the Republicans' foot race to the high court is not mysterious. No doubt they are banking on a rerun of the court's December 2000 decision to abort the post-presidential election recount in Florida and assure George W. Bush's election. To political professionals of all stripes and many laypersons, Bush v. Gore stood, and still stands, for the proposition that when political chips are down, the five conservative justices will ignore precedent and vote their partisan gut. 

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The Obama administration has, of course, rejected the Republicans' requests. But their hurry-up campaign may receive a big boost from Florida District Judge Roger Vinson. On Jan, 31, Vinson not only struck down the individual mandate as unconstitutional but went on to "void" all other provisions of the 2,500-page Affordable Care Act, because, he wrote, the ACA contained "too many moving parts" for him to "try and dissect out the able-to-stand-alone [provisions] from the unable-to-stand-alone." This week, the Department of Justice asked Judge Vinson to "clarify" that he did not intend to halt the actual implementation of the rest of the act. If, as expected, Vinson rebuffs DoJ, he will trigger an immediate request to the 11th Circuit Court of Appeals in Atlanta to permit implementation efforts to continue while Vinson's decision is under review. The appellate court's response could, in turn, spark an emergency appeal to the Supreme Court. And that could give the court an immediate crack at the merits of the case, if enough justices are inclined to take it. 

This push to get on and over with the health reform challenges has stirred sympathy even among some ACA supporters, such as former Pennsylvania Gov. Ed Rendell and Florida Sen. Bill Nelson. But the justices should resist any impulse to skip over normal appellate review, even those who may be queasy about the idea of mandatory health insurance. The Republicans' plea for extraordinary, indeed, unprecedented fast-tracking—that "certainty" is needed to avoid unnecessary "daunting and costly financial regulatory burdens implementing [the ACA] over the coming years"—is almost entirely bogus. While it's true that, as of this moment, three district judges have upheld the mandate, and two, including Vinson, have struck it down, the overwhelming majority of state governments are proceeding right along, pocketing the benefits and undertaking the responsibilities prescribed by the ACA. 

As noted in the Justice Department's "Motion To Clarify," 25 plaintiff states (all but Alaska) have already applied for and been awarded federal grants to set up the "exchanges" necessary to give individuals not covered by group health plans access to affordable insurance. Twenty-two plaintiff states have been awarded a total of $22 million to create or improve oversight of health-insurance premium increases. And 12 plaintiff states have contracted with HHS to run federally funded high-risk insurance pools established by the act. All plaintiff states are recipients of the ACA's Early Retiree Reinsurance Program, which provides $5 billion in federal subsidies to encourage employers to continue covering employees who retire before they are eligible for Medicare, until applicable ACA provisions take effect in 2014. 

None of the above provisions—or any other provisions that offer state governments benefits or heavy lifting responsibilities prior to 2014—depend on the mandate. Nor is their constitutionality in serious question. For example, the ACA feature that most preoccupies many state governments—the expansion of Medicaid to cover all American adults with incomes below 138 percent of the federal poverty line * (and which is fully funded by the federal government through 2016)—is entirely unrelated to the provision targeted by the lawsuits (and was specifically held constitutional by judge Vinson). The ACA gives states the option of enforcing the statute's highly popular insurance reforms, a number of which—such as the ban on lifetime caps and arbitrary rescissions of coverage for innocent or inconsequential mistakes by the policy-holder—are already in effect and thus, by definition, not dependent on the mandate, which does not take effect until 2014.  

Nor does it appear that any national uncertainty has been spawned by Judge Vinson's remarkable ruling that invalidating the mandate entitled him to make the whole, concededly largely unrelated, statute go poof. Practically no informed observers, including, evidently, most of the plaintiff state governments, expect the Supreme Court ultimately to uphold Judge Vinson's decision to disregard a rule the Supreme Court reaffirmed only last term: That courts should strike down only "problematic portions" of a challenged statute, "while leaving the remainder intact." 

Short-circuiting the normal review process deprives the justices of the sorting-out process that multiple lower-court decisions can provide over time, especially helpful in a complex and controversial case like this one. Already, district courts have narrowed the legal issues appreciably. All courts, for example, have so far upheld all targeted provisions except for the individual mandate; most – though not all – have rejected the Obama administration's procedural and jurisdictional ("standing" and "ripeness") defenses; and all have rejected justifications for the mandate based on Congress' tax-and-spend authority. 

But—far worse than the loss of intermediate appellate review—premature Supreme Court intervention would also pre-empt the ongoing policy and political debate about the new law, and the individual mandate in particular. Active public and academic discussion about a number of issues is now raging over whether the mandate is indeed essential for its most central mission—ensuring affordable coverage for individuals with pre-existing conditions; whether other, more flexible incentive mechanisms could be nearly as effective (and be enacted); or whether the public will in time accept the connection between the mandate (of which a majority disapprove) and pre-existing conditions protection (which is highly popular). These admittedly technical, policy, and ultimately political issues should be mulled over and resolved in academia, think tanks, industry and advocacy groups, the media, and, most important, state capitols and Congress. Not in the Supreme Court. 

Regardless of how the court resolves the matter in the end, one would think all its members would want to minimize perceptions that their black robes and legalese are merely thin cover for a politically driven exercise. Indeed, so far, district-court decisions for and against the mandate have split along purely partisan lines (though some Republican appointees have upheld Obama administration motions to dismiss on procedural and jurisdictional grounds). To avoid these perceptions, the justices must bite off no more than they need or can chew, politically, and proceed calmly and deliberately down well-grooved procedural tracks.

Finally, there is more at stake here than the Supreme Court's image alone. Were the court to take this case prematurely, as opponents demand, it would send out the signal that the 21st century court is prepared to challenge Congress as a direction-setter and/or micro-manager of economic regulatory (or other domestic) policy. Under the Constitution as it has been interpreted in every Supreme Court case decided since 1937, granular but politically charged policy choices—like whether the mandatory insurance requirement is an appropriate means to regulate 18 percent of the national economy—would be almost entirely left to Congress. Short-circuiting standard procedures will telegraph that the Court will accept invitations by interested parties and political allies to be the decider in chief of policy and political matters that are outside its ken and, traditionally, beyond its reach. True, that trend has been spurred by the increasing yen of members of Congress themselves—mainly, but not exclusively, Republicans—to seek partisan results or finesse political risks by passing the buck to the court, thereby ceding their own clout as legislators. 

But shrinking Congress' stature does not necessarily serve the institutional interests of the judiciary, much less the public interest or the Constitution. This should be especially clear if an unprecedented pre-emptive intervention ends in a hasty 5-4 decision to strike the ACA individual mandate. In that event, rushing to judgment will simply reinforce the already widespread bipartisan assumption that, when urgent need arises, the five conservative justices see themselves as consiglieri for the Republican Party.

Correction, Feb. 28, 2011: This article originally suggested the expansion would cover adults with incomes under 138 percent above the federal poverty line. (Return to the corrected sentence.)

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Simon Lazarus, public-policy counsel to the National Senior Citizens Law Center, and Timothy Jost, professor of law at Washington and Lee University, write frequently on legal issues relating to the Affordable Care Act. 

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