Politico
Health law ruling only the beginning
By JENNIFER HABERKORN & SARAH KLIFF
December 14, 2010

Opponents of the Democrats’ health care reform law won a major victory in federal court Monday — but even the ambitious attorney general who brought the case acknowledges that there’s a long way to go.

“For the past nine months, we’ve been arguing about the constitutionality,” Virginia Attorney General Ken Cuccinelli told reporters Monday. “Today, we won that argument, but we still have an unknown number of months ahead of us.”

District Judge Henry Hudson struck down the heart of the Obama administration’s health reform law Monday, ruling that the individual mandate to buy health insurance is unconstitutional.

The mandate “exceeds the constitutional boundaries of congressional power,” Hudson wrote in his decision.

Within hours of the ruling, Cuccinelli called for the judicial process to be “fast-tracked,” essentially bypassing the 4th Circuit Court of Appeals and moving directly to the U.S. Supreme Court. Two top Virginia Republicans, Gov. Bob McDonnell and House Minority Whip Eric Cantor, joined in the request.

“Both sides should seek to waive a hearing in the 4th Circuit Court of Appeals and allow this monumental case to move immediately to the U.S. Supreme Court for prompt final resolution,” McDonnell said Monday in a statement. McDonnell will ask governors and governors-elect to petition United States Attorney General Eric Holder for an expedited review.

But sources and observers tell POLITICO that the fast track is a long shot: The Supreme Court rarely uses the option, and the Obama administration has already indicated it would not support such a move.

In a background briefing with reporters last week, Obama administration officials said they do not plan to support an expedited review of the case and called the move “premature.” Legal experts tell POLITICO that fast-tracking the case would be an abnormal move.

“Given that the health care mandate doesn’t kick in until 2014, the argument for expediting it is not really strong. It’s quite an unusual thing to do,” said Harvard Law School professor Charles Fried, who served as U.S. solicitor general under President Ronald Reagan.

Without a fast track, the case would go next to the 4th Circuit Court of Appeals, where the Obama administration has 60 days to file an appeal. A traditionally conservative court, the 4th Circuit has moved slightly to the left with recent Obama appointments. The Circuit Court would pick a three-judge panel at random to hear the case. If the judges split on the ruling — as most observers expect they would — the case would go to the full 13-judge court. 

“The most important thing is the panel that sits on the case,” said University of Virginia’s Richard Bonnie. “If the panel is divided, and I think it’s likely they will be, then it goes to the full court.”

“My sense is, if we get a typical panel from the 4th Circuit, it’s likely to be a split, 2-1 decision either way,” said Carl Tobias, a professor at the University of Richmond. “It’s unlikely to be 3-0.”

Whatever the outcome, the 4th Circuit’s decision would very likely be appealed, making the challenge a Supreme Court contender. But with about two dozen health reform lawsuits filed, it’s far from certain that Cuccinelli’s case would get the coveted SCOTUS slot. Cuccinelli’s case could be edged out by other challenges, such as the 20-state suit in Florida state court in which oral arguments will be heard on Thursday or it could be consolidated with other cases.

Whichever health reform challenge reaches the Supreme Court, legal observers have a wide range of opinions on how the decision would split.

“As I count the votes on the Supreme Court, you have one certain to vote in Hudson’s direction (Thomas), four certain to vote the other side (the usual suspects), which means that the health care bill would only need to pick up one vote from Kennedy, Scalia, Roberts or Alito,” George Mason University professor Jeremy Mayer told POLITICO on Monday. “Based on basic core judicial outlook, the most likely fifth vote would be Kennedy, but it could also be Roberts, who might finally want to make good on some of his promises of judicial restraint.”

But with multiple courts already ruling in the Obama administration’s favor, Elizabeth Wydra, chief council at the Constitutional Accountability Center, dubbed the ruling an outlier.

“The Supreme Court has given quite specific guidance on the scope of Congress’s power under the Commerce Clause and the Necessary and Proper Clause,” she told POLITICO. “I think the health care reform law will be upheld as constitutional.”

Either way, the Virginia ruling emboldened Republicans to attack the health reform law, and the administration rushed to defend its biggest legislative accomplishment.

Sen. John Cornyn (R-Texas), who previously served on the Texas Supreme Court, called Monday’s ruling “huge” and described the individual mandate as “an unprecedented expansion of federal power.” But he said the decision ultimately will rest with the Supreme Court.

“We all know what’s going to happen next. It’s gonna go up to the High 9 on the Potomac, and they’re gonna ultimately get to make that choice,” Cornyn told POLITICO. “I usually tell people it will be a 5-4 decision. I just can’t tell you which way.”

The White House wasn’t surprised by the ruling but downplayed its impact, highlighting the two other federal courts that have upheld the legislation.

“The bill will continue to have its day in court,” White House spokesman Robert Gibbs told reporters. “This is the third federal court that has rendered a decision on this portion of the Affordable Care Act, and two of the courts have upheld it. … We are confident that the Affordable Care Act will be upheld.”

Gibbs stressed the importance of the insurance requirement to help achieve insurance industry reforms in the legislation.

“We look at it as the basis by which we can address the important issues like the discrimination against those with a pre-existing condition,” he said. “We look at it as how you deal with uncompensated care with people going to the emergency room and everyone paying for it as a result of that.”

The Virginia ruling has been a long time in the making. The state was the first to pass a law barring the mandated purchase of health insurance, setting the stage for Cuccinelli’s lawsuit, which, like most of the health reform challenges, argues that the individual mandate that everyone buy health insurance is an unconstitutional expansion of the Commerce Clause.

In the Monday ruling, Hudson, a George W. Bush appointee, stopped short of blocking the law’s implementation until a higher court acts but said he expects the administration to honor his ruling.

“The final word will undoubtedly reside with a higher court,” Hudson wrote in his ruling. “In this court’s view, the award of declaratory judgment is sufficient to stay the hand of the executive branch pending appellate review.”