The Right Prescription

Obamacare and the Law’s Delay

The DOJ asks the Supreme Court to abet its delay strategy on Obamacare litigation.

By 3.25.11

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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.

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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.