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The Right Prescription
Obamacare and the Law’s Delay
The DOJ asks the Supreme Court to abet its delay strategy on Obamacare litigation.
Among the slings and arrows of outrageous fortune itemized by Hamlet, as he fondles his bodkin and contemplates the value of continued existence, is “the law’s delay.” That seems an oddly trivial complaint to find on such a weighty list, but perhaps the Bard was grinding his teeth over some unnecessarily protracted lawsuit at the moment he was casting about for a couple of iambs to insert in that line. If, for example, he had sued someone represented by pettifoggers like those of the Department of Justice (DOJ), it isn’t hard to see why he would deem legal foot-dragging as egregious as an “oppressor’s wrong.” Not coincidentally, an oppressor’s wrong — Obamacare’s individual mandate — is just what the DOJ hopes to preserve with tactics clearly intended to postpone the day when Virginia v. Sebelius is heard by the Supreme Court.
The ostensible position of the Obama administration is one of extreme confidence that the Old Dominion’s lawsuit constitutes no real threat to the unpopular health “reform” law or its onerous mandate. Indeed, the DOJ’s public statements consistently insinuate that none of the many lawsuits filed against Obamacare have any merit. The department’s Deputy Director of the Office of Public Affairs recently claimed, “There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing the Affordable Care Act.” However, as Hamlet’s mother would phrase it, the DOJ protests too much. Its actual behavior strongly suggests that a final ruling by the Supreme Court on the constitutionality of Obamacare is a thing the administration wishes to avoid as long as possible.
Shortly following his December victory over the Obama Justice Department in U.S. District Court, where Judge Henry Hudson ruled the individual mandate unconstitutional, Virginia Attorney General Ken Cuccinelli announced that he would petition the Supreme Court for an expedited review of the Old Dominion’s case: “Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone’s best interest.” It is, of course, extremely unusual for the high court to take up a case that has not been thoroughly tested in the purgatorial appellate process. Nonetheless, it occasionally does so by virtue of “Rule 11,” which allows the justices to act swiftly on cases they deem to be of “imperative public importance.”
Thus, its bluster notwithstanding, the DOJ moved decisively to have Virginia’s petition denied. Last week, Obama’s acting Solicitor General filed a brief in opposition claiming that there “is no basis for short-circuiting the normal course of appellate review.” The DOJ filing is catalogue of specious pretexts for postponing the inevitable, including the preposterous claim that the case is not of imperative public importance. In the jargon of constitutional law, Virginia v. Sebelius “does not resemble the handful of cases in which this Court has taken the extraordinary step of granting certiorari before judgment.” In their reply brief, Virginia’s attorneys provided the obvious response to this risible assertion: “If this case does not satisfy that standard, it is difficult to see what case ever could.”
The Justice Department’s brief also resurrects the claim that Virginia lacks standing to bring the litigation in the first place. Essentially, this argument holds that the Old Dominion has failed to demonstrate that it has been or will imminently be harmed by Obamacare and thus has no right to challenge the law’s constitutionality in court. This claim has already been rejected by Judge Hudson. Moreover, as legal scholar Bradley Joondeph explains it, “DOJ will have to defend the constitutionality of ACA… and who has standing only affects who will be the party against whom DOJ is making the argument.” In other words, the “no standing” claim against Virginia will not prevent the Supreme Court from ruling on Obamacare in the end. Thus, there is nothing to be gained from its exhumation but delay.
So, if Obamacare is going to wind up before the Supreme Court sooner or later — and there is virtual unanimity among constitutional scholars that it will — what does the administration hope to gain from its transparent delay tactics? First and foremost, it gives the health “reform” law time to metastasize. If Obamacare has another year and a half to spread throughout our health care system, the justices may well decide that it would be too disruptive to strike down the entire law. This consideration certainly figured in Judge Hudson’s December ruling, in which he ignored the absence of a severability provision in the law and chose to strike down only the mandate. Likewise, the Supreme Court has already demonstrated in a recent ruling on the Sarbanes-Oxley accounting law that severability is situational.
Beyond buying time for Obamacare to put down roots, the DOJ may be hoping to put off the day of reckoning until the President has the opportunity to adjust the left-right balance of the Court. At present, it doesn’t look like any of the conservative justices are planning to retire, but Justice Scalia just turned 75 and younger men than he have unexpectedly left the Court for a higher tribunal. In 1953, Chief Justice Fred Vinson died suddenly at 63. This, as it happens, is the age of Clarence Thomas. Perhaps the DOJ lawyers share the hope of columnist Julianne Malveaux, who once wished aloud that Mrs. Thomas would feed her husband “lots of eggs and butter and he dies early.” If so, they are likely to be disappointed. Justice Thomas, like Scalia, appears to enjoy stubbornly robust health.
In addition to that inconvenient reality, the DOJ received more bad news on Wednesday afternoon. Virginia’s request for an expedited review has been scheduled for discussion by the justices in their April 15 conference. This does not necessarily mean the Court will grant the petition and hear the case prior to appellate review, but it does mean the nine most influential judges in the country will have a serious — and private — discussion about the actual merits of the case. If four of the justices vote in favor, the petition will be granted and all the DOJ’s delay tactics will have been for naught. This is a consummation devoutly to be wished.
About the Author
David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.
Quint Jackson| 3.25.11 @ 8:34AM
You left out the insolence of office.
Carol| 3.25.11 @ 10:13AM
Dear God:
When the Supremes meet on April 15th, please let those with common sense let the case go forward ASAP.
Leo W| 3.25.11 @ 10:27AM
This story does what Obama himself does: It calls the legislation in question, "The Affordable Care Act", when its name at the time of passage was, "The Patient Protection and Affordable Care Act".
Please, don't allow this to be the first thing discarded and become Obama-like...
mbd| 3.25.11 @ 10:29AM
The Administration's strategy may be dictated by the ability - or inability - of Justice Kagan to hear a case on the healthcare issue. If she must recuse herself because she had involvement with the development of the legislation while she was with the Administration, that would leave 8 justices to determine a case considering the constitutionality of the legislation. If the case goes directly to the Supreme Court from a ruling that a portion of the Act is unconstitutional, a 4-4 split of the Court would result in the affirmance of the lower court's ruling. Under this circumstance, the Court's four man conservative block would not need Justice Kennedy's vote to effectively hold the Act unconstitutional - at least in part. A greater problem to the Administration's strategy will be the potential review of the decision from the Northern District of Florida which held the entire Act unconstitutional, since the defective provisions were held not to be capable of being separated from the whole. On the other hand, if both of these cases should first be considered by the 4th and 11th Circuits, respectively, there is the chance that one or both of those Court's panels will uphold the Act. Under that circumstance, a 4-4 split of the Supreme Court would also uphold the constitutionality of the Act. Thus, the vote of Kennedy would be key. The Administration may believe that this is its best chance.
Andrew P| 3.26.11 @ 2:54AM
The Supreme Court is also unlikely to decide the issue during the heat of the 2012 campaign, and would probably punt it to the next session, but if it gets on the docket earlier, it could be decided before the campaign heats up in earnest.
Delay is also to the advantage of the Administration if one of the Conservatives dies. The actuarial odds that one of the 5 will have a stroke or heart attack within 18 months are actually quite high. While the GOP has sufficient fillibuster power to stop a permanent replacement from being confirmed, I have no doubt that Reid will allow Obama to make a recess appointment just to protect ObamaCare. A recess appointment made in 2012 can last until the end of 2013. Obama would probably appoint a different person as the temporary stand in "to keep the court's strength at nine" while the Senate blocks or delays his nominee for the slot.
Mitch Angoop| 3.25.11 @ 10:54AM
Regardless of the outcome of ANY level court's opinion, this criminal regime will somehow continue to find ways around the rule of law. Look no further than Wisconsin to see a clear example of the democratic party's arrogant disregard for the rule of law.
If the quasi-legal existance of the obama regime continues to ignore the rule of law; how can any court in the country find against ANYBODY who would deign to threaten the existence of this administration; or even head criminal obama himself.
As every schoolteacher in Wisconsin has destroyed any vestige of authority by their flaunting of the rule of law in the use of forged doctor's excuses to get out of their legally required attendance at work; how can any democrat invoke the rule of law in the sordid, shoddy, and CLEARLY UNLAWFUL way they jammed this travesty of law through Congress?
Hypothetically speaking then; why should any citizen be arrested, or even questioned for ANYTHING; up to, and including a threat to brutally kill ANY member of this criminal cabal, from the evil head to the stinking tail? The behavior of obama, pelosi, reid, and every democrat/liberal supporting them in their federal crimes or state transgressions, as in Wisconsin; has removed the power of law and precedence from this government. They have, hopefully, sown the seeds of their own destruction. For, after they have willfully destroyed the rule of law in their endless quest for power, can they actually invoke to rule of law to stop Americans from removing them by force if necessary? Power corrupts; and this group of criminal thugs and their drive for absolute power has absolutely corrupted them and our whole Country. To quote: "OFF WITH THEIR HEADS!"
Indiana Alex| 3.25.11 @ 12:00PM
`Liberals will always cherish the rule of law when it works in their favor, and ignore it when it does not.
And please be careful with the rhetoric. Only liberals are allowed to use threats of violence and death.
Mitch Angoop| 3.25.11 @ 3:43PM
The rhetoric is hyperbole, and intended to demonstrate the double standard given obama and his criminals by the media and the cowardly republicans. Obama and his thugs are flaunting the rule of law all across the country and the media is doing nothing but cheering them on. Millions of Americans are watching what is happening; and wondering to themselves how long these thugs will be able to flaunt the law of the land before being made to pay for their crimes.
Thomas Jefferson said it: "From time to time the tree of liberty must be refreshed by the blood of patriots." I would rather the 'tyrants' pay with THEIR blood. We have no shortage of them; and the average American is watching. The Second Amendment was included in our Constitution specifically to give the people a means to protect themselves FROM the government.
This is certainly not threat; and I'd never raise my hand against another human being; even one as despicable as a liberal/democrat believer. But, we are guaranteed the Constitutional right to bear arms intentionally to keep the 'wannabe dictators' awake at night wondering if they've gone too far.
Dave | 3.25.11 @ 5:05PM
Obamacare? Well, as Floyd R. Turbo used to say on the Tonight Show -- "Goat Plop!"
GOOD night, everybody!!
Nite| 3.25.11 @ 8:47PM
Obamacare is one of the biggest crimes thrust on we the people. The Dems did it by forcing the law through and not even knowing what was in the bills and the problems it would place on the people. There are currently over 6000 pages of regulations to enforce this bill and they are not through. I read those bills twice and people will NOT like what is in them. The ultimate goal is a one payer system like England and Canada. You should read up on the higher rates of cancer deaths, other types of deaths from disease and deciding which patients will die and then making sure that they do. This is mostly in England. The problem is access and keeping people out of ER's. There were a lot of different cheaper steps that could have been taken rather than the complete take over of our healthcare system, which is the best in the world. However, Dems want to control the people in this country by telling them what to eat, drive, where to live, what healthcare to use, how much energy to use, in short, complete control of our lives. Right, the liberal Dems are Socialists or Communists. If you disagree, think about which web sites were advertising the Dems answer to 9/12 (Glen Beck) The Socialist and Communist parties. The Unions are part of this radical group as well. I don't think the rank and file members are part of this nonsense, but the leaders are.
Yosemeti Sam| 3.25.11 @ 10:52PM
" ... Virginia's request for an expedited review has been scheduled for discussion by the justices in their April 15 conference. This does not necessarily mean the Court will grant the petition and hear the case prior to appellate review, but it does mean the nine most influential judges in the country will have a serious -- and private -- discussion about the actual merits of the case. If four of the justices vote in favor, the petition will be granted ...."
4?
Hmmmm.
Roberts, Scalia, Alito, Thomas - ya think?
Andrew P| 3.26.11 @ 2:57AM
They will also discuss the issue of recusals, as in who must recuse themselves.
Quint Jackson| 3.26.11 @ 1:16AM
The insolence of office
Clint Lovell| 3.26.11 @ 12:19PM
Get on with it. For God's sake, stop wasting time and make a decision.
Oldefarte| 3.26.11 @ 12:51PM
To me this SCOTUS decision will be lagnaippe to the November 2012 elections, which will put this WELFARECARE to permanent bed status!!!!!!!
Mimi| 3.26.11 @ 1:57PM
I can't believe there is ...ANYONE in this country not aware of the damages to this NATION that the Health Care Bill does !
The Supremes ...must know...But let them deliberate. The economy is held in HOSTAGE...The normal robust vigor we have always had in the past, with a free market forever bouncing back like a "hard rubber ball" is in captivity... to this Democratic MONSTER...
DAM !!
The cases in Virginia and in Florida..(so well written) and the living proof of delay practices by the administration is telling. Tricks and telling the Robes when and how to do their JOB is insulting, controlling and obnoxious... NERVE they have!!!
I know and TRUST the Black Robes...and , they will do what is the best for this country...God Bless Them!!
Chris Pedersen| 4.27.11 @ 9:32PM
Yeah, don't hold your breath, the death panels are now open and waiting for their turn at Quanitative Easing Q1 and your the one who will be first the in line because they denied the Petition For Writ Of Cert!
Obama's plan moves on and will take root deeper and deeper and deeper in an election year!
Please, give me the next 6 winnnnng numbers of the Multi-State Lottery. Thats your odds now Pal! Polish up that crystal ball too.
While your at it, look around the corner, the gurney's comming, pushed by the guys in the Black Robes to the Judical Gas Chamber, while Obama holds thee door open. CIA as in C-ya!
Kent Lyon| 3.26.11 @ 11:12PM
Those constitutional scholars to which Mr. Caton refers, who believe that this case will ultimately wind up before the Supreme Court, don't seem to be familiar with the Constitution. Article III Section 2 specifies that in any suit in which the federal government has a conflict with a State, the Supreme Court has ORIGINAL JURISDICTION. That means that District Courts, Circuit Courts, federal appellate courts, do not have jurisdiction. This case should have been heard directly and originally by the Supreme Court, according to the Constitution. But who pays attention to that document? Mr. Caton certainly doesn't seem to, nor do his scholars. The Obama administration, his DOJ, should be insisting that the case go directly to the Supreme Court. They could actually get a reversal of Hudson's ruling, inasmuch as Hudson does not have Constitutional authority to hear this case. As always, the US Constitution today is honored ONLY IN THE BREACH. Our whole federal government is a farce.
martin j smith| 3.27.11 @ 7:48AM
There are about @ of voters who support Obama Care. They are: The Government and its workers,Government workers Unions,Most in Academia and education ( overlaps with Unions ) Hollywood, most MSM, the "poor" ( those who pay no taxes )Communist and other "true believers" and RINOS who care about nothing but their own aggrandizement . I am sure I may have left some out--sorry about that. There are other who really are either indifferent,ignorant etc who probably say something like: "what is all the fuss over". This is what we are up against.
The court should behave as if it is a separate branch of government. Sadly, every day it becomes apparent that our courts --The SCOTUS is no exception --are a group of lawyers in black robes who decide things only on their political affiliation by bending the "law" to fit their perspective. A truly independent judge is extremely rare. Thus they are high level political hacks and nothing more.
That said I think for the good of the country SCOTUS should take on this case ASAP.
Mimi| 3.27.11 @ 11:57AM
AMEN....Yes ,...As soon as possible...Unleash the ECONOMY !!!
dennisl59| 3.27.11 @ 7:04PM
Reagan has a lot of reasons to be spinning in his grave these days, but this is THE ONE he's most concerned: Government control of your healthcare, i.e.-LIFE.
tom B| 3.28.11 @ 9:42PM
Maybe, just perhaps, Obama is going regret one day that he insulted the SCOTUS at his State of the Union address. I don't think that it was Bard that said it but someone did..."what goes around comes around"......
Timely Renewed | 3.30.11 @ 1:29AM
The fundamental underlying problem is that federal judges, including the Supreme Court, hearing the challenges to Obamacare are bound by 70 year old Supreme Court precedents which vastly expanded the original scope of the Constitution's interstate commerce clause. We will not be able to stop and roll back the ever-increasing expansion of the federal leviathan until we have restored the original meaning of the interstate commerce clause. We can accomplish this by amending the Constitution to reverse such Supreme Court misinterpretations of the Constitution's original meaning and structure. See http://www.timelyrenewed.com.
Chris Pedersen| 4.27.11 @ 9:13PM
What else is new, the Court has now aided and abetted in the ficilitation of the Chicago Mafia's Criminal Racketeering Enterprise as a trade in for our Liberty.
One thing is certain, Mark Levin's Book "Men In Black" demonstrates that the Court is no more effective than Obama's "Cash For Clunkers" and as their denial has already come down, they are now the Court Of Flunkers minus a few letters left to your imagination[s].
I guess they use the Constitution one piece at a time as they join in their foot patrols in the stalls Black Robes and all.
OOPS I meant Halls Of NO Justice other than for themselves as Just-Us.
Pee on our backs and tell us it's raining!
Creative Recreation | 8.10.11 @ 11:24PM
is good