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The Right Prescription
Supreme Court to Consider Obamacare Case Friday
Justices scheduled to discuss Virginia’s petition for certiorari at April 15 conference.
When the U.S. Supreme Court is in session, each Wednesday and Friday afternoon is set aside for an esoteric conclave known as the Justices’ Conference. During these private meetings, the justices discuss cases they have recently heard or might decide to hear. The first order of business usually involves the latter, requests from various litigants for the high court to review cases that have been adjudicated by lower courts. Typically, these cases have already been through the appellate process, but occasionally the justices receive a “petition for certiorari before judgment” asking them to consider the decision of some District Court before it has been reviewed by a Court of Appeals. Friday’s conference schedule includes consideration of one such petition, filed pursuant to Commonwealth of Virginia v. Sebelius.
The Virginia case was, of course, the first legal challenge to the Patient Protection and Affordable Care Act (PPACA) in which the Department of Justice (DOJ) received a major defeat. Last December, U.S. District Court Judge Henry Hudson ruled that Congress had exceeded its constitutional limits by including a requirement that all Americans buy health insurance in the health care “reform” law. Shortly following this ruling, the Obama DOJ filed an appeal in the U.S. District Court of Appeals for the Fourth Circuit, but Virginia Attorney General Ken Cuccinelli announced that he would petition the Supreme Court for an expedited review of the case. Explaining his move to bypass the usual protracted appellate process, Cuccinelli averred that “a prompt resolution of this issue is in everyone’s best interest.”
Oddly, considering its oft-repeated assertion that Congress does indeed possess the authority to impose such a mandate, the Obama DOJ has taken the opposite view. It has, in fact, worked diligently to put off the inevitable day when it must make that case before the Supreme Court. In response to Cuccinelli’s petition, the DOJ filed a brief in opposition claiming that Virginia had provided no good reason for “short-circuiting” the appellate process. The Court does, of course, have practical and philosophical reasons not to meddle with the normal appeals process, but its procedural rules allow it to do so if a case is of “imperative public importance.” Ironically, the DOJ’s brief actually concedes that the constitutionality of the individual mandate “is undoubtedly an issue of great public importance.”
And it is hardly necessary to consult a constitutional scholar to see that it is in the public interest to resolve the uncertainty created by Obamacare in an industry comprising a sixth of the nation’s economy. Not coincidentally, many of the cases in which the Court has “short-circuited” the appellate process have involved crucial sectors of the economy. This was certainly true, for example, when it intervened shortly after World War II in United States v. United Mine Workers. The Court reached over the appeals courts for that case and ruled against the union as well as its leaders. Arguably, leaving the constitutional challenges to Obamacare wandering around for another year in the labyrinthine appellate process would be far more disruptive than would have been the case absent that example of expedited high court review.
If the Court does grant Virginia’s petition, it will of course be accused of doing so for political reasons. Among progressives, it is a given that the Court is “quite — though not entirely — politicized,” as eminent legal scholar Ezra Klein phrases it. Fortunately for the country, the “politicization of the Supreme Court” is largely fiction. As Jennifer Rubin characterized Klein’s comment, “From the perspective of people who understand how the Supreme Court works… [i]t doesn’t represent how the justices think and how the institution operates.” The justices are not wholly immune from politics, of course. But, unlike many progressive journalists, the people who sit on the Supreme Court are pretty honest — even the liberals. Otherwise, they would never have produced a 7-2 ruling that Florida’s 2000 recount scheme was unconstitutional.
That the justices are generally honest is, however, not necessarily good news for those of us who would like to see them take up the Obamacare case immediately. Most of the DOJ’s arguments against Virginia’s petition for certiorari are disingenuous, even to the untutored eye of the layman. But the government’s lawyers do make one claim that might well gain traction with six of the nine justices — that the state doesn’t have standing to bring the lawsuit. To have standing, Virginia must show that it has been or will be harmed in some way that the Court can address. The DOJ argues that the Old Dominion is only “harmed” to the extent that PPACA violates a state law that was passed merely to provide a pretext for a suit against Obamacare: “[Virginia’s] claim to standing rests entirely on a novel ‘declaratory’ state statute.”
This argument proved unconvincing to Judge Hudson last year, but it is taken seriously by constitutional scholars of varying political stripes, among whom the issue has been vigorously debated since Cuccinelli first filed his lawsuit. For a writ of certiorari to be granted, at least four of the justices must vote in favor despite this arcane point of law. It may, therefore, be the rock upon which Virginia’s petition founders. Knowing that other plaintiffs in the myriad constitutional challenges to Obamacare will have unassailable claims to standing, even the “conservative” justices may want to rule on a “cleaner” case. This is probably why Ken Cuccinelli admits that his request to bypass the normal appellate process is a long shot, and rates his chances of prevailing at “no higher than 60 percent” even in the long haul.
Most court watchers put Virginia’s chances of getting the nod from four justices at very nearly zero. And they may well be right. On the other hand, the Supremes have a propensity to surprise even the most sophisticated “experts.” When they sit around the table for Friday afternoon’s Justices’ Conference, no one else will be in the room. They will treat one another with the respect they deserve and they will say what they really think. If they decide to grant Virginia’s petition, it will not be the first time this very exclusive club has produced raised eyebrows and sharp intakes of breath.
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.
Letter to the Editor View all comments (31) | Leave a comment
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Mimi| 4.14.11 @ 7:04AM
At the very least they are beginning to talk about this case! Obama-care must be put to rest with finality. The way it was passed, the downright mistakes , and errors...the loss of so much individual FREEDOM...The corruption , with these waivers.....It just doesnt deserve this much attention and grinding to a halt of the economy by the uncertainy.....LAY IT DOWN TO SLEEP.. once and for ALL!!!
Harry the Horrible| 4.14.11 @ 8:47AM
Unfortunately, all this rests on one Justice - Justice Kennedy.
Anyone have any guesses how he will vote?
RCV| 4.14.11 @ 7:05PM
The Court very, very rarely will take an important case before it has gone through the Court of Appeals. It is highly unlikely the case will get the four necessary votes for certiorari. The Court will want to hear the views of the various appellate courts around the country as these disparate appeals make their way up.
Carol| 4.14.11 @ 7:20AM
I pray to God Almighty that the conservatives on the court deem Obamacare unconstitutional.
We need a win out here Lord because time is running short to save the nation and our old people.
RCV| 4.14.11 @ 7:06PM
I doubt that God is expending a lot of energy wringing his hands over the health care bill.
Real Christian Virtue| 4.14.11 @ 10:09PM
I don't bother with silly God/abortion when sanctimoniously pontificating on God/health care matters.
alice moore| 4.14.11 @ 7:45AM
What will we do if the Humpty Dumpty Court deems it a constitutional law?
Can it still be repealed by a future Congress and Administration?
JohnK144| 4.14.11 @ 9:13AM
Of course it can. We've had Congresses repeal Amendments to the Constitution. obamacare is nothing more than legislation. It can, and will be repealed.
George S| 4.14.11 @ 10:48AM
It can, but our constitutional process puts up a lot of barriers against large shifts in policy from a fickle public. To overturn the law will require a Republican president, Republican House and, the hard part, a 60-seat Republican Senate to overcome a filibuster. And then there is the media who will be a factor in shaping public opinion and scaring Republicans (see Boehner; Speaker; tags: Afraid; Shut Down; Compromise).
The biggest obstacle will be us. How many posts have you read here that say something to the effect of "If it's [blank] who gets the nomination then I'm not voting". That will reassure the reelection of Obama and the permanence of ObamaCare.
Lullabys, Legends and Lies| 4.14.11 @ 8:18AM
There's nobody better to fight this battle against Washington then Virginia's Attorney General Ken Cuccinelli!! A few months back he destroyed Chris Mathews, so much so, that Old Tingles had to cut him off, and then make his arguments against him once he was off the air. If Virginia wins this case, and Obamacare is ruled Unconstitutional (finger's crossed), whoever gets the Republican nomination for President would be very wise to make MR Cuccinelli their Vice President. The General that defeated Obamacare, you couldn't ask for more!!
JohnK144| 4.14.11 @ 9:16AM
Why put Cuccinelli in such a ceremonial role? I think he's much better suited to become Attorney General.
Lullabys, Legends and Lies| 4.14.11 @ 11:34AM
Okay, Attorney General for the next Republican Administration (whomever that'll be), that'll do too!! But imagine the hornet's nest that the Democrats would be at that conformation hearing, if he just singlehandedly overturned Obamacare a few months before. Which led directly to the President not being re-elected on his biggest campaign promise that completely fell to pieces? Whew!! Tough crowd!! Can you say Robert Bork?
Ken (Old Texican)| 4.14.11 @ 8:28AM
Alice,
if the Supremes don't knock it down, the "precedent" will be set for a whole avalanche of tyranny.
I'll let some of our attorney posters comment further, but we are then in a war, plain and simple.
Impeach Don't Wait| 4.14.11 @ 8:14PM
Yep. That's exactly the whole point. If the government can do this... they can now do pretty much anything they darn well please. Enumerated powers will be an archaic concept.
WickedDickie--Virginia| 4.14.11 @ 9:03AM
Seems to me that the criminal (allegedly Catholic) Pelosi appropriated funding of that socialist mess called Obamacare last year which could be construed to be damaging Virginia thus giving the Commonwealth standing as being harmed.
Carlos| 4.14.11 @ 10:00AM
I would dispute that last, perhaps throwaway line, that the Supreme Court is a "very exclusive club." The fact is, the Court has almost no say over who is granted membership to it. Any bozo who can persuade one president and 51 (or perhaps 60) senators to vote for him can become a member. Viz., Justices T. Marshall, Souter, Ginsburg, Sotomayor, and Kagan.
cicero| 4.14.11 @ 11:07AM
The above reponses to the article demonstrate that the American public no longer has any illusions that the court system is apolitical or impartial, After 42 years as a general practice attorney, I find it impossible to advise clients as to what the courts will say the law is tomorrow. Rather than merely interpret thee law as passed by the legislatures, they, to quote an appellate panel I argued infront of a few years ago, "make it up as they go along".
Lots of luck fellow citizens. We are relying on the good graces of a court system that is, constitutionally, out of control, and I see no way to put it back on its constitutional leash.
George S| 4.14.11 @ 11:18AM
As far as standing goes, the Constitution is silent. Standing is a concept set forth in prior SCOTUS decisions and is now case law. Those laws were written in normal times to protect the courts from frivolous complaints. ObamaCare hardly falls under that category. It is a matter of life and death. For everybody. If that ain't standing, I don't know what is.
Oldefarte| 4.14.11 @ 1:19PM
Virginia [or any/all states] will be HARMED quite readily if the SCOTUS does NOT immediately hear this case, since these insurance exchanges that states are required to establish in order to implement WELFARECARE will be unnecessarily expensive to do so. Additionally, each state's proportionaly share of the 30+ million additional [most of whom will be indigents under Medicaid and requiring taxpayer/state subsidies] will also add to each state's expenses. This piece of garbage is nothing but more governmental WELFARE disguised as health insurance!!!!!!!!!
George True| 4.14.11 @ 4:40PM
Back in 2008, I told everybody till I was blue in the face that the real and irrevocable consequences of a Hillary or a Barack victory is that they would be able to appoint at least two and perhaps even four or five supreme court justices. My words were prophetic.
Now we have two new appointees who are both hardcore leftist ideologues, and who will be voting in favor of any and all Marxist/leftist/socialist causes for the next thirty years. One of them thinks that because she is a "wise Latina" she will automatically make better decisions than a white male possibly could. The other one thinks that all private income already belongs to the goverrnment.
If Obama is re-elected next year, he will probably appoint at least two more justices to the Supreme Court. After that, nothing else would really matter much, as the court would subsequently put their rubber stamp approval on our complete transformation to a socialist form of government. A Democrat must not win in 2012 or else the American experiment in enlightened self-government will be over.
Ken| 4.14.11 @ 5:33PM
"It can, but our constitutional process puts up a lot of barriers against large shifts in policy from a fickle public. "
The public has hardly been fickle here. Clinton tried the same thing early in his administration and was thumped badly over it. There is a remarkable consistent public attitude over the decades toward a massive federal takeover of the health insurance industry.
Beside it isn't the public that is behind this wide swing in policy; it is the federal government that charged full speed ahead against the manifest will of the people.
The constitution places significant barriers against such usurpation of powers by the federal government. The bill of rights declares the Constitution as a limiter of government This case is about respecting those barriers.
All American American| 4.14.11 @ 6:05PM
Prior to the War Between the States, when we were these united States of America, States had an equal say in the constitutionality of legislation. They didn't like it, they didn't enforce it.
After the WBTS, when America became this United States, generations of Americans have been taught to believe the SCOTUS is "final arbiter." The States voluntarily entered a pact in which they and the People had more power than the Federal Govt. All States need to do is fail to enforce it. You want to take your 10A back? Start there.
Nite| 4.14.11 @ 10:30PM
Obama's appointee's should not be allowed in on the discussions. Especially Kagin since she was involved up to her neck. Hopeful, but may not happen until the suit brought by all the states. That is likely a better case.
Slingshot| 4.15.11 @ 4:06AM
If Obama is reelected and appoints another couple of those hardcore liberal harpies to the Court, it's all over for the Constitution. They simply have no respect for it and will not follow it--they think they have better ideas. The Founders may have been wiser than we know by keeping women out of politics.
All American American| 4.15.11 @ 7:42AM
Come on folks its not all over for the Constitution! The Federal Govt has enumerated and limited powers; the States and the People do have the power (or were supposed to anyway) in America. States must simply have their legislatures declare this unconstitutional and not enforce it. Remember the 10A!!!!!
Stephen Sowell| 4.15.11 @ 12:06PM
First and foremost, the Bush v. Gore was 5-4 on stopping the recount, not 7-2. 7-2 was the equal protection part of the case.
Secondly, under man cases, economic 'inactivity', such as the decision not to buy health insurance, is, under current Commerce Clause jurisprudence, constitutional, if it 'substantially affects' such commerce. I see the court waiting out the full appeals process so that they have a decent range of merits to look at. Ultimately, the decision will rest on what is considered 'activity' or 'inactivity'.
My bet 7-2 or 6-3 the law will be upheld.
Eric| 4.15.11 @ 1:20PM
Conferencing this matter with Kagan and Sotomayor locked into the socialism advancement at all costs will be as probable as the conferencing of the Kerchner appeal as clearly acted out by Justice Thomas , laughable. The court is in ruin. Putting the constituion before it is like taking a match to it. The proof will spill down the steps of that building like so much fecal matter on a hill.
Dee See| 4.15.11 @ 11:40PM
Obamacare was scripted by the capstone
EUGENICS-driven insurance industry.
ON RECORD
It's designed to bring in a systematic, incremental,
highly and lucratively medicated extermination
to taper off with the consumation of their
VAST covert sterilization op..
------------THOU SHALT NOT KILL----------------
---what is there about this situation that you
don't understand.
CERagsdale| 4.26.11 @ 10:55PM
If the Supreme Court does not rule Obamacare unconstitutional then clearly they do not know how to make moral decisions that are in the best of the American people anymore. I am so against them being able to serve on the court for their entire lifetime. They need to have limits just like the Senate needs to be have limits. They should all only be allowed to serve for a certain amount of time and then it is time for someone else to be elected to the people's seat. When I saw the majority of the judge positions get overtaken by the liberals I knew right then and there that the courts are becoming just as corrupt as Congress. There will probably come a time when all prisoners will be able to walk the streets or have reduced sentences. The fact that Obamacare and other laws are being given special priviledges to the special interest groups proves that this and everything about Obama is clearly unconstitutional. You need to pass the same laws for everyone. There will come a day in the coming days when even the current supporters of Obama will regret the day they were on his side. By then it will likely be too late to save what is left of this country since it will be in ruins due to the corruption of the Democrats and George Soros.
Christian Louboutin | 6.23.11 @ 4:12AM
When the U.S. Supreme Court is in session, each Wednesday and Friday afternoon is set aside for an esoteric conclave known as the Justices' Conference. During these private meetings, the justices discuss cases they have recently heard or might decide to hear. The first order of business usually involves the latter, requests from various litigants for the high court to review cases that have been adjudicated by lower courts.
Creative Recreation | 8.10.11 @ 10:20PM
is good