By DAVID NATHER | 2/1/11 4:37 AM EST
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'Nobody’s exactly sure which way the 5 to 4 will come down,' said one law professor. | AP Photo |
Monday’s federal court decision striking down the Democrats' health care reform law is just Act I in a long legal drama — and nobody knows how it will end.
The suspense is killing both sides.
“A year ago, it was a long shot,” said Randy Barnett, a law professor at Georgetown University, of the law’s chances of winding up before the Supreme Court. “Now, it’s seen as a 5 to 4 case. And nobody’s exactly sure which way the 5 to 4 will come down.” (see: Health law suffers new blow)
It’s the kind of case the Supreme Court would rather not touch. In most cases this politically explosive, the justices might look for any technical reason to bounce it back to the lower courts. But now, they may not have a choice.At stake is the biggest social legislation in a generation, and the defining achievement of Obama’s presidency. But the legal challenges also will determine whether the federal government can make people buy health insurance and whether it can prevail over the opposition of 26 states. It’s a showdown that could define limits of federal power for decades to come, pitting Obama’s view of an activist federal government against a more narrow reading of federal authority. (see: W.H. charges 'activism' in ruling)
“This case could define federalism for the next 100 years,” said Jonathan Turley, a constitutional law professor at George Washington University. “If the Obama administration prevails in its view, it’s hard to see what’s left of federalism.” (see: HHS: Call it a law, not a bill)
Chief Justice John Roberts “does not believe the Commerce Clause allows you to do everything and anything,” but he’s not “an adventurer” and therefore might not go so far as to strike down the mandate, according to Charles Fried, a former solicitor general under President Ronald Reagan who testified at Roberts’s confirmation hearings in 2005. “I think there’s a good chance it will be a 6-3 decision in favor of constitutionality,” said Fried, who voted for Barack Obama in 2008.
A high court ruling that overturned the mandate, Fried said, “would be viewed as a highly partisan, highly political act.” (see: States still implementing reform)
Other legal experts said all eyes will be on Justice Anthony Kennedy, the most likely swing vote if it really is a 5 to 4 decision. But the constitutionality of the individual mandate — the requirement for everyone to get health insurance starting in 2014 — is a complicated question that might not get decided along predictable ideological lines.
Conservative legal scholars say it’s not hard to imagine a scenario where the Roberts court declares that the Obama administration has taken the Commerce Clause too far. (see: Senate GOPers sign on to repeal)
“They don’t have to make a stretch to do that. They can just say, `We’ve let the Commerce Clause stretch way beyond its text, and we’re not going to go any further,” said Dave Kopel, an adjunct professor of advanced constitutional law at the University of Denver.
Because the stakes are so high, “this is a very difficult case for the Supreme Court as an institution,” said Turley. “You have a slight majority of the states opposing it. You have a national law that’s affecting hundreds of billions of dollars of services. This is the type of case that justices do not relish.”
But Barnett thinks the issues are too important for the Supreme Court to avoid now. “This is a constitutional question that everyone in the country is talking about,” he said. “I would think they would feel morally obligated to take this on.”
Unlike Judge Henry Hudson’s December ruling in a separate lawsuit filed by the state of Virginia — which struck down the individual mandate but left the rest of the law alone — Judge Roger Vinson ruled that the mandate is so central to the rest of the law that it can’t be overturned by itself.
“This Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed,” the judge wrote.
“There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone.”
Vinson’s ruling was the strongest legal blow to the law yet. But it wasn’t a total surprise to anyone who has followed his legal questions or his politics closely.
The judge, appointed by President Ronald Reagan in 1983, dropped plenty of clues of a conservative ideology into his ruling, including a nod to the tea protests against the British and quoting a segment on Reason TV called, “Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful.”
Now, the lawsuit filed by 26 states moves into more mixed ideological territory. The appeal will go to the 11th Circuit Court of Appeals, which is considered middle-of-the-road and “within the mainstream of the federal circuits,” according to Michael Carvin, a constitutional law expert at the law firm Jones Day. It would be heard by a three-judge panel, and then probably by the full appeals court.
Trying to figure out the prospects in the appeals court would be “a sucker’s game” because it depends on which three judges get appointed to the panel and how they, and the rest of the court, might view both the mandate and the rest of the law, Carvin said.
“There are two decisions the appellate panel will have to make. One: Is the mandate unconstitutional? Two: What do we do with the rest of the law?” Carvin said. “You can agree with this judge on the first question without agreeing with him on the second.”
Ultimately, the Supreme Court will have to decide those questions too — probably by the closest of margins. And whichever way the court goes, it can be almost sure that a substantial portion of the country — those who support the law or those who want to fight it to the bitter end — will not accept the decision.
“Until a judge appointed by a Democratic president strikes it down, or a judge appointed by a Republican president upholds it, nobody’s views about this are going to change,” said Mark Tushnet, a law professor at Harvard University.
