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.
