Supreme Court Is
Asked to Rule on Health Care
Published: September 28, 2011 - New York Times
WASHINGTON — The Obama administration asked
the Supreme Court on Wednesday to hear a case concerning the 2010 health
care overhaul law. The development, which came unexpectedly fast, makes it
all but certain that the court will soon agree to hear one or more cases
involving challenges to the law, with arguments by the spring and a decision by
June, in time to land in the middle of the 2012 presidential campaign.
The Justice Department said the justices should hear its appeal of a
decision by a three-judge panel of the United States Court of Appeals for
the 11th Circuit, in Atlanta, that struck down the centerpiece of the law by a
2-to-1 vote.
“The department has consistently and successfully defended this law in
several courts of appeals, and only the 11th Circuit Court of Appeals has ruled
it unconstitutional,” the Justice Department said in a statement. “We believe
the question is appropriate for review by the Supreme Court.
“Throughout history, there have been similar challenges to other landmark
legislation, such as the Social
Security Act, the Civil Rights Act and the Voting
Rights Act, and all of those challenges failed,” the statement
continued. “We believe the challenges to the Affordable Care Act — like
the one in the 11th Circuit — will also ultimately fail and that the Supreme
Court will uphold the law.”
On Monday, the administration announced that it would not seek review from
the full 11th Circuit. Its Supreme Court petition was not due until November.
The administration did not explain why it did not take routine litigation
steps that might have slowed the progress of the challenges enough to avoid a
decision in the current Supreme Court term. It did say in its brief that the
11th Circuit’s decision striking down the central piece of a comprehensive
regulatory scheme created “a matter of grave national importance.”
The political calculus is complicated. A decision striking down President
Obama’s signature legislative achievement only months before the election would
doubtless be a blow. But a decision from a court divided along ideological lines
could further energize voters already critical of last year’s 5-to-4 campaign
finance decision, Citizens United.
A decision upholding the law might also both help and hurt Mr. Obama’s
chances. It would represent vindication, but it could also spur some voters to
redouble their efforts to elect candidates committed to repealing it.
The three federal courts of appeal that have issued decisions on the law so
far have all reached different conclusions, with one upholding it, a second —
the 11th Circuit— striking it down in part, and a third saying that threshold
legal issues barred an immediate ruling. A fourth challenge to the law was heard
last week by the United States Court of Appeals for the District of Columbia
Circuit.
The views of the appeals court judges have not uniformly tracked the presumed
views of the presidents who appointed them. Judge Jeffrey S. Sutton, appointed
by President George W. Bush, joined the majority in a 2-to-1 decision of the
United States Court of Appeals for the Sixth Circuit, in Cincinnati, which
upheld the law. Judge Frank M. Hull of the 11th Circuit was appointed by
President Bill Clinton and was an author of its majority opinion.
Also on Wednesday, two sets of plaintiffs who had won on the core issue in
the 11th Circuit filed their own requests for Supreme Court review.
“Time is of the essence,” wrote Paul D. Clement, a former United States
solicitor general who represents 26 states that are challenging the law. “The
grave constitutional questions surrounding the A.C.A. and its novel exercise of
federal power will not subside until this court resolves them.”
The 11th Circuit, in a decision issued in August, ruled that a part of law
requiring the purchase of insurance — the so-called individual mandate — was an
unconstitutional exercise of Congressional power.
The majority decision, written by Chief Judge Joel F. Dubina and Judge Hull,
said, “We have not found any generally applicable, judicially enforceable
limiting principle that would permit us to uphold the mandate without
obliterating the boundaries inherent in the system of enumerated Congressional
powers.”
The United States solicitor general, Donald B. Verrilli Jr., disputed that
analysis in the administration’s brief. The law, he wrote, requires most people
to buy insurance “rather than rely on a combination of attempted self-insurance
and the back-stop of care paid for by other market participants.” The individual
mandate, he went on, “like the act as a whole, thus regulates economic conduct
that substantially affects interstate commerce.”
The 11th Circuit ruled against the 26 states and the other plaintiffs on two
points. It said its ruling on the individual mandate did not require “wholesale
invalidation” of the law, and it upheld the law’s expansion of the Medicaid
program.
The
petition from the 26 states and a
second one, from the National Federation of Independent Business and two
individuals, sought review on the issues they had lost in the 11th Circuit.
The administration’s brief and those of the plaintiffs mostly addressed
different questions and talked past one another. Each side now has a chance to
respond and tell the court its views about whether the issues identified by its
adversaries warrant review.
But almost all of the usual signs indicate that the court will agree to hear
at least one challenge to the law: a federal appeals court has struck down a
major piece of federal legislation, the lower courts are divided about its
constitutionality, and all sides, including the federal government itself, agree
that review is warranted.
It is less clear which case the justices will agree to hear. Also pending
before the justices is a
petition from several individuals and the Thomas More Law Center, which
describes itself as a defender of “America’s Christian heritage and moral
values,” seeking review of the Sixth Circuit decision.
Nor is it clear which issues the justices will focus on. Simply agreeing to
hear a case does not guarantee that the Supreme Court will decide whether
Congress had the power under the Constitution’s commerce clause to enact the
individual mandate, the question at the heart of the challenges.
The court could agree with some lower courts that some or all of the
plaintiffs lack standing to sue or that the central issue is not yet ripe for
decision. The United States Court of Appeals for the Fourth Circuit, in
Richmond, Va., for instance, ruled
this month that it was premature to decide the central question, citing a
federal law allowing suits only after certain taxes and penalties are due. The
administration found itself in an awkward position on this question before the
Supreme Court, as it had initially pressed but later abandoned the argument.
In Wednesday’s brief, Mr. Verrilli said the administration did not think it
should win on the Fourth Circuit’s theory. It nonetheless suggested that the
court consider the issue and perhaps appoint a lawyer to present arguments in
favor of it, as the court occasionally does when the parties agree on a
significant issue that could alter the outcome of the eventual decision.