February 3, 2011

What’s the next step in the ObamaCare cases?

By What’s the next step in the ObamaCare cases?

Author: Timothy Sandefur

On Tuesday, I posted a comprehensive chart of the existing lawsuits challenging the constitutionality of ObamaCare. Now word comes that Virginia might ask the U.S. Supreme Court to take the appeal directly, rather than going through the usual process of appeals. What exactly does that mean?

Normally, federal lawsuits begin in the district court—the trial courts that cover certain districts within a state. There are two federal districts in Virginia, for instance, the eastern and western districts, and there have been challenges to the Individual Mandate in each of them—the Liberty University case, which district judge Norman Moon dismissed back in November, holding that the Mandate is constitutional; and the Commonwealth of Virginia case, in which judge Henry Hudson ruled it unconstitutional. The next step after the district court is typically an appeal to one of the thirteen circuit courts of appeal, each of which covers a circuit of several states (except the D.C. Circuit and the Federal Circuit, which are just located in Washington, D.C.). Since Virginia is in the Fourth Circuit, the appeals in both the Liberty University and Commonwealth of Virginia cases have been filed in the Fourth Circuit Court of Appeals.

After an appeal is filed, the parties file their briefs and then hold oral argument, and the Court of Appeal decides the case, after which, the parties normally have the option of asking the Supreme Court to hear the case. The Supreme Court doesn’t have to hear these cases, so the parties have to first ask the Court to grant a writ of certiorari, very few of which are ever actually granted. This whole process—from the appeal in the circuit court of appeals to consideration of the Supreme Court—can take several months or even years.

What Virginia is considering, however, is an unusual procedure whereby the Supreme Court can skip these intervening steps in exceptionally important cases. Supreme Court Rule 11 (which you can read here) says that the Court can take a case directly if it “is of such imperative public importance as to justify deviation from normal appellate practice.” Certainly the ObamaCare cases are important, but are they of that much importance? That’s really a judgment call for the Supreme Court justices—four of whom must decide to take a case before the Court will issue the writ of certiorari. It’s been done before, in cases of similar importance. On the other hand, the Court often likes to wait to see what the lower courts will decide, especially when there are several cases going on in different circuits.

On one hand, ObamaCare officially goes into effect in 2014, which would mean there’s plenty of time to wait for the courts of appeal to decide. On the other hand, individuals and states are already having to make their financial arrangements, and a prompt resolution would be particularly helpful to states, who have to know what they should do about taxes and Medicare spending in the next several years, if they are going to make budgets right now.

It’s also hard to tell what the political implications of immediate review might be. If the Republican party is serious about repeal, they would probably benefit from a slower legal process. Keeping up legal pressure for the next couple of years would probably strengthen the GOP’s position in the next round of senatorial elections. All things considered, opponents of the Individual Mandate have an uphill battle in the Supreme Court—so a quick decision upholding its constitutionality would probably hurt the Republicans. On the other hand, a controversial Supreme Court opinion upholding the Mandate might also strengthen their position, given that ObamaCare is still very unpopular among voters. Such a decision might stir up more opposition.

Those of us whose focus is more on the constitutional issues might also be reluctant to see the Supreme Court take this case quickly. In McConnell v. FEC, the Court very quickly reviewed the constitutionality of the McCain-Feingold campaign speech regulation, and quickly issued a puzzling and extremely long set of opinions upholding the constitutionality of this blatant violation of the First Amendment. It was several years before the Court returned to a more careful, constitutionally balanced approach, in cases like Wisconsin Right to Life and Citizens United. The lesson is: sometimes haste lays waste to the Constitution. (Here’s another example of that.)

All that said, the Supreme Court is certainly going to take up this issue at some point, and since the question involved is a plain legal issue with no messy factual issues to resolve, it may decide that the country should have the question answered right away.

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