USA Today reports:
“Legal challenges to the sweeping federal health care overhaul backed by the Obama administration are heading toward the Supreme Court, where the justices who would decide the law’s fate could have as much at stake as the parties battling over it.
A ruling on the constitutionality of the law — a cornerstone of the Obama presidency that has set Democrats against Republicans, and states against Washington — could mark a defining moment for the court under conservative Chief Justice John Roberts , who took the helm a half-decade ago as the youngest chief in 200 years.
The first signal from the justices may come as soon as this month, when they decide whether to put the health care dispute on a fast track. Virginia officials have asked the court to swiftly determine the constitutionality of a key provision that requires most Americans to get health insurance. Obama administration lawyers have urged the justices to wait until a lower U.S. appeals court weighs in, the usual course of a case. If the justices agree to hear the case early, the law’s fate could be decided by summer.
Even if the court rejects Virginia’s request and chooses to wait — a likely scenario based on court tradition — the justices inevitably would confront the health care overhaul by next year. The politically charged case could land at the court in the fall of 2012, during the height of the presidential election season.
“The battle lines have been drawn, the relevant case law marshaled, and the legal arguments refined,” wrote Florida-based U.S. District Court Judge Roger Vinson in a recent order clarifying his ruling against the law. “Almost everyone agrees that the constitutionality of the act is an issue that will ultimately have to be decided by the Supreme Court of the United States.”
As the cases move forward, the overhaul continues to face political opposition. House Budget Committee Chairman Paul Ryan’s bold plan to scale back Medicare and Medicaid also would gut the health care law passed last year. House GOP leaders, including Ryan, have long opposed the insurance requirement.
In the legal realm, the question is when and how the Supreme Court’s action ultimately would define the court itself.
“There are two issues here,” Harvard University law professor Mark Tushnet says. “One is about health care. And the other is about the Supreme Court. And the justices will be thinking about both.”
Tushnet says the health care controversy presents a crucial test for the court and compares today’s situation with the late 1930s, when the high court was reviewing President Roosevelt ‘s New Deal initiatives. The New Deal, aimed at helping America recover from the Depression, included Social Security and a range of jobs initiatives, housing programs and financial regulations. The court carved out its historic place in that era as it first rejected programs to stimulate industrial production and help workers, and then ultimately took a broader view of federal power and upheld FDR’s key initiatives.
In recent years, the nine-member Roberts Court has been deeply divided along ideological and political lines and increasingly caught up in Washington’s polarized atmosphere.
Yet the high stakes in the health care dispute go beyond the fractious climate in Washington and the political reality that lower-court judges who have ruled on the law have divided along partisan lines — with Democratic appointees upholding it, and Republican appointees deeming it unconstitutional.
The case the justices would confront cuts to the heart of the structure of government and relations among the branches.
“The court has to figure out its own place in government and what it is committed to,” says University of Virginia law professor Daniel Ortiz . “Does it want to be very muscular in policing … structure of government? Does it want to defer to Congress and the president? This case probably poses those questions with about the highest visibility of any case in a long time.”
The high court’s divide
On many politically charged issues, the current court splits 5-4.
Republican-appointed conservatives — Roberts and Justices Antonin Scalia , Anthony Kennedy , Clarence Thomas and Samuel Alito — tend to form the majority. The Democrat-appointed liberals are Justices Ruth Bader Ginsburg , Stephen Breyer , Sonia Sotomayor and Elena Kagan . Kennedy has become a swing-vote justice by occasionally siding with the liberals on issues such as support of gay rights.
The health care law signed by President Obama in March 2010 was unprecedented, but high-court review of sweeping federal laws is not. For decades, the court has endorsed expansive federal power.
Yet, there have been some recent departures from that trend. And challengers to the health care overhaul, such as Virginia Attorney General Kenneth Cuccinelli , say the law is more intrusive than past federal legislation.
The specific disputed provision requires that, beginning in 2014, people must buy insurance coverage or face a tax penalty. That insurance mandate is fundamental to the law’s overall goal of reducing the number of uninsured people and the costs they impose on the nation’s health care system.
In court filings, Obama administration lawyers have argued that the insurance requirement flows from Congress’ power to regulate commerce in the states. They say even a decision not to buy health insurance can be considered “economic activity” that affects commerce because those who are uninsured raise costs for everyone. The challengers have argued that when someone fails to buy insurance, there is no such economic activity affecting commerce and warranting federal regulation.
Lower-court judges who upheld the law highlighted two past rulings on commerce supporting that position.
In the 1942 case Wickard v. Filburn, the court backed Congress’ authority to restrict home-grown wheat that was not going to be sold in an interstate market. In the 2005 case Gonzales v. Raich, the court endorsed a federal drug law that overrode a California policy that allowed locally grown marijuana to be used for medicinal purposes.
Lower-court judges who ruled against the health law invoked two recent cases that could cut the other way.
In the 1995 case United States v. Lopez, the court said Congress overstepped its authority when it banned guns near schools. In United States v. Morrison in 2000, the court ruled that Congress went too far in the Violence Against Women Act by creating new federal grounds for civil lawsuits and saying women could sue their attackers.
In both those instances, the Supreme Court said the challenged laws did not involve economic activity and went beyond Congress’ power to regulate interstate commerce.
Legal analysts disagree on how those precedents and others might apply to the health care law that is being challenged now.
George Mason University law professor Ilya Somin argued at a recent forum sponsored by the American Constitution Society that the Constitution’s “original meaning,” along with recent cases, would lead a majority of the court to reject the law.
“There is no logical way to uphold this mandate,” Somin said, predicting that Justices Thomas, Scalia, Kennedy and Alito would be inclined to strike down the law. Somin said the vote of Chief Justice Roberts is more difficult to predict based on his record.
Speaking at the same conference, Walter Dellinger , who was a top lawyer in the Clinton administration and who believes the law is constitutional, predicted Roberts would vote to uphold it. “He is thinking of a very long philosophical position as a chief justice,” regarding the roles of the branches of government, Dellinger said.
One signal in that direction came last term. Roberts joined an opinon by Breyer in a case that tested congressional authority over prisoners in the federal system. The Breyer majority broadly read a provision of the Constitution that gives Congress the power to enact laws that are “necessary and proper” to carry out its constitutional powers.
Is it constitutional?
The health care law is now on expedited docket schedules in three appeals courts.
The U.S. Court of Appeals for the 4th Circuit, which handles appeals in the Mid-Atlantic states, has scheduled arguments for May 10 in two Virginia cases on the law. One U.S. district court in Virginia upheld the insurance requirement; the other declared it unconstitutional.
The Midwestern 6th Circuit has set arguments for June 1 on a challenge from the Michigan dispute, where a judge upheld the insurance provision.
A federal judge in Florida ruled the insurance mandate unconstitutional and, going further than other courts, said the entire health care law was thus void.
Obama administration lawyers have suggested in their appeal of that decision to the Southeastern 11th Circuit that all filings be in by June, which could have led to oral arguments later in the summer. The challengers, however, asked for an even faster briefing schedule, and the 11th Circuit recently set a June 8 hearing date.
At least one of those circuit courts is likely to rule by year’s end, which would put the issue on track to be decided at the high court in 2012 — unless the justices accept Virginia’s pending plea to hear the matter before a lower appeals court rules.
That almost never happens.
Kevin Russell , a Washington lawyer who argues before the Supreme Court, examined how rarely the court accepts such a case and noted on the SCOTUSblog website run by his firm that court rules say such petitions are granted “only upon a showing that the case is of … imperative public importance.”
“The court has been true to its word,” Russell observed, “granting (such petitions) in only a handful of cases over the past 75 years.”
Some arose because the federal government sought a quick ruling, such as in the 1974 case involving President Nixon ‘s Watergate tapes.
In asking for an exception, Virginia Attorney General Cuccinelli wrote, “Given the importance of the issues at stake to the states and to the economy as a whole, this court should (accept the case) to resolve a matter of imperative public importance.”
Cuccinelli, a Republican, reflects the partisan and ideological divide on much of the litigation so far.
One prominent lawyer who has very publicly broken that pattern is Harvard law professor Charles Fried , who was the government’s top lawyer before the court during the Reagan administration and is known for his unyielding conservatism in the 1980s.
In testimony before the Senate Judiciary Committee, Fried noted that the high court long ago said insurance was a form of commerce.
“And health care insurance surely is commerce, insuring as it does something like 18% of the gross national product,” he continued. “Now … if health care insurance is commerce, then does Congress have the right to regulate health care insurance? Of course it does.”
Of the ground-breaking law, Fried added, “I’m not sure it’s good policy. I’m not sure it’s going to make the country any better. But I am quite sure that the health care mandate is constitutional.””