The U.S. Supreme court has nixed a request by Virginia to rule on the controversial health care reform law — which means the case will continue to work its way through lower courts and most likely be considered later. It’s not a surprise that the court rejected it but this ruling suggests the issue could come for a ruling in 2012 — election year.
The Supreme Court on Monday turned down Virginia’s request that it rule immediately on the constitutionality of the nation’s health-care overhaul.
The decision to reject Virginia Attorney General Ken Cuccinelli II’s request for expedited review, announced routinely without elaboration or noted dissent, is not surprising. The court rarely takes up issues that have not received a full review in the nation’s appeals courts.
Various challenges to the health-care law championed by the Obama administration and passed by the Democratic-controlled Congress in 2010 are proceeding rapidly. Hearings are scheduled for next month in the U.S. Court of Appeals for the 4th Circuit in Richmond, and two other appellate courts will address the issue in June.
Depending on the speed of the appeals courts and the legal process, the issue could arrive back at the court by next year, in the thick of the next presidential election.
Cuccinelli, a Republican elected in 2009, has been one of the most vocal opponents of the Patient Protection and Affordable Care Act, which has been a major issue in the nation’s political debate since its passage.
He challenged Congress’s authority to pass the so-called individual mandate, which requires nearly all Americans either be covered by their employer’s insurance or buy their own coverage.
Cuccinelli told the court that it should short-circuit the usual appeals process because of a “palpable consensus in this country that the question of PPACA’s constitutionality must be and will be decided in this court.”
But the Obama administration countered that the individual mandate requirement does not take effect until 2014, and that the justices would benefit from reviews of the law now underway in the appellate courts.
Various state and private challenges to the Patient Protection and Affordable Care Act are now before federal appeals courts across the U-S, a process that is expected to take several months at least before they would go to the U-S Supreme Court. Virginia’s unusual request to have their appeal move to the head of the line rarely succeeds, since the justices traditionally like to have these kinds of petitions fully analyzed and decided by lower courts– before the nation’s highest court would tackle them.
Federal judges have split on whether a key provision– the “individual mandate” requiring most Americans to purchase health insurance by 2014 or face financial penalties– is constitutional.
An interesting update from NBC’s Pete Williams:
*** UPDATE *** In today’s brief one-sentence order rejecting the Virginia request, there’s no indication that any justices were recused.
When the issue reaches the Supreme Court, as it is expected to during the term that starts in the fall, it appears that all nine justices will hear it. (Some conservative groups were calling on Elena Kagan to bow out, claiming she was involved in some early calls when she was solicitor general about who in her office should handle the issue.)
And Democrats will also likely demand that Clarence Thomas recuse himself. From The Hill in February:
A group of 73 House Democrats on Wednesday demanded U.S. Supreme Court Justice Clarence Thomas recuse himself from any case examining the constitutionality of healthcare reform.
Rep. Anthony Weiner (D-N.Y.) and 72 other colleagues wrote Thomas on Wednesday to ask him to sit out any Supreme Court review of President Obama’s healthcare law, citing the work by Thomas’s wife on behalf of efforts opposing that healthcare law.
“As members of Congress, we were surprised by recent revelations of your financial ties to leading organizations dedicated to lobbying against the Patient Protection and Affordable Care Act,” the Democrats wrote. “We write today to respectfully ask that you maintain the integrity of this court and recuse yourself from any deliberations on the constitutionality of this act.”
The letter reflects the growing political gamesmanship on both sides of the aisle in regard to court challenges to healthcare reform.
For instance, Sen. Orrin Hatch (R-Utah), a senior member of the Senate Judiciary Committee, has called for Justice Elena Kagan to recuse herself in similar cases. Kagan had worked in the Obama administration as solicitor general, and Hatch argued this would bias her in any consideration of the healthcare law.
SOME OTHER BLOG REACTION:
—Michelle Malkin:
Uncertainty will reign as Obamacare litigants slog it out in court….Missouri’s Democrat attorney general is now on record opposing the unconstitutional Obamacare law.
At the state level, meanwhile, Obamacare opponents continue to gather signatures for a new round of ballot measures challenging the federal mandate.
But this is a temporary victory. The Virginia lawsuit has been seen as a bit flimsier than the one supported by a preponderance of Republican. state attorneys general.
There are things that could happen to derail this timetable, of course. The Courts of Appeals could take time issuing their decisions, meaning that the time to appeal to the Supreme Court would be pushed back and the case may not get argued until the October 2012 term. Given that all three courts have placed these cases on an expedited calender, though, that seems unlikely. The losing parties at the Courts of Appeals could decide to apply for en banc review by the Court of Appeals before going to the Supreme Court, although that seems unlikely with a case such as this. Finally, of course, the Supreme Court could decline to accept any of these cases but, given that we’re talking about a major piece of federal legislation, that seems very unlikely.
More likely than not, then, the Supreme Court seems on track to issue a decision on whether or not President Obama’s signature legislative achievement is Constitutional right before the start of the 2012 election campaign. That should make things very interesting.
The court had an opportunity to simplify matters ahead of time by accepting the expedited appeal and consolidating the cases. Their decision to stay out of the process at this time may mean that they are interested in hearing from the appeals courts on the wider variety of arguments already in play, rather than focus mainly on the Virginia case. It also may indicate that the justices aren’t concerned about the appeals taking a very long time to get to them anyway; as the AP notes, they’ll still probably get at least one of the cases in the 2011-12 term, giving them plenty of time to rule on the law before much of it takes effect.
The report also speculates that Elena Kagan took part in the deliberations to reject the expedited appeal. That’s based on the lack of announcement of a recusal rather than any direct indication, as these rejections rarely produce any statement from the court. If Kagan didn’t recuse herself from this decision, it would hint that she won’t recuse herself from any ObamaCare deliberations despite her role as Solicitor General for Obama and the possibility that she gave the administration legal advice on crafting and defending the law. That’s not exactly a surprise either; only Kagan can force herself into a recusal, and the chance to weigh in on one of the most critical Supreme Court decisions in decades is going to outweigh any qualms over conflicts of interest.
Justice Elena Kagan apparently didn’t recuse herself from this decision, an indication that she will also take part in the case once it reaches the high court. SCOTUS is still likely to hear and rule on the case before the 2012 election. The fate of ObamaCare, and the government’s asserted power to require Americans to purchase a product or pay a fine, still rest in the hands of the mercurial Justice Anthony Kennedy.
The AP reports that even with the new ruling, the “case still could reach the high court in time for a decision by early summer 2012,” which would turn the case into a political circus in advance of the November presidential elections.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.