Look, Folks. All I know is what I read in the newspapers, as my brother from Claremore, Oklahoma, used to say.
However, one would be hard pressed to write better fiction than the reality that large, intrusive, government provides. The latest example has President Obama’s Department of Justice siding with the majority of the States in their effort to have the core component of the Patient Protection and Affordable [Health] Care Act (ACA) evaluated by the Supreme Court.
THE HYSTERICAL BACKGROUND
This piece of legislation, with its Orwellian title, mandates that, eventually, all of us must purchase health insurance. Those that can not shall, of course, have their premiums subsidized by the rest of us. Those that will not shall, of course, have their wallets punished by those who supposedly represent us.
The Obama administration is now 1-1-1 in the federal appeals court battle over this central provision of the law. A federal appeals court of the Sixth Circuit in Cincinnati has ruled (2-1) that this provision is constitutional. A federal appeals court of the Eleventh Circuit in Atlanta ruled (2-1) this past month that this provision is unconstitutional.
Finally, a federal appeals court of the Fourth Circuit in Richmond (Virginia) ordered two lower court decisions vacated on the basis that the plaintiffs were unqualified to sue, since they had not yet been harmed by the ACA. Both lower court decisions in the Fourth Circuit had declared the central mandate of the ACA constitutional.
THE BURNING IN ATLANTA
The Atlanta ruling is particularly significant. It comes as the result of a case brought by the State of Florida.
The Sunshine State was joined in its action by Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming. The fact that a majority of the States joined to oppose the ACA alone makes this case noteworthy.
In addition, the federal government lost its defense of the ACA badly in the lower court in two important ways:
- The individual mandate to purchase health insurance was declared unconstitutional.
- The individual mandate provision was deemed sufficiently critical to the legislative objective of the ACA that its unconstitutionality thereby rendered the entire Act unconstitutional.
The Atlanta appeals court agreed with the lower court on the first point. It disagreed with the lower court on the second point. Therefore, both the federal government AND the States had grounds on which to appeal the Atlanta appellate court ruling.
The States petitioned the Supreme Court for a Writ of Certiorari on the day before yesterday citing the basis that the individual mandate is not severable from the entire ACA. This left President Obama, and his Attorney General, Eric Holder, with some tough choices.
THE LESSER OF THREE WEEVILS
After the Atlanta decision on August 12, 2011, Obama and Holder had three options, each with important consequences:
- They could do nothing.
- Within 90 days from the decision, they could request that this case be reheard ‘en banc’ by a larger flock of judges on the Eleventh Circuit.
- Within 90 days from the decision, they could appeal the decision of the Eleventh Circuit to the Supreme Court.
In doing nothing, the president leaves standing his loss in Atlanta on the constitutionality of the individual mandate, while preserving his victory on the severability of this section of the Act from the remainder. In practical terms, however, the ACA is an even greater economic disaster without the individual mandate; and Barack knows this. Hence, the President cannot let this part of the Atlanta ruling stand. Therefore, he must appeal via either options 2 or 3.
In appealing to the same court again, this time with a full panel of jurists, the President risks that they will affirm the unconstitutionality of the individual mandate and that they will reverse themselves on the unconstitutionality of the Act. This would exacerbate the president’s loss, reduce the possibility that the Supreme Court would grant the president a complete victory, and delay a Supreme Court decision until after the election in November, 2012.
So, you guessed it! Yesterday Mr. Holder filed his petition for a Writ of Certiorari to go through Door # 3.
He wants the Supreme Court to determine the constitutionality of the individual mandate – exactly what the States have requested from the lower courts. The motivation is, of course, to acquire a decision next summer after a hearing during the term that begins, traditionally, this Monday after the court's summer recess.
THE JOINING OF STRANGE BEDFELLOWS
Thus, it has come to pass, during the course of this past week, that the Obama administration has now joined with the States to be heard on the question of whether Congress exceeded its enumerated powers by seeking to impose a mandate that would require every American to purchase health insurance. It nearly has the appearance of the federal government suing itself.
Will such miracles ever cease?
This really makes one wonder what Barack, who is a lawyer, albeit without much experience, but who has, as a member of the bar, taught courses on constitutional law, was thinking as he and his once monolithic Party apparatus steamed-rolled this legislation through the “we must pass this now and read it later” Congress of Speaker Pelosi. Perhaps they all had hard ons over what they were doing to that poor, misguided, minority across the aisle. Perhaps they thought they would be enraptured on the day of the passage of the ACA because the socialist Nirvana of national healthcare had been achieved in America.
Whatever. . . .
In the immortal words of gaffe-prone Joe Biden, it will be a big, fucking, deal if the Supreme Court decides that all, or part, of the ACA is unconstitutional. If it does, then the President will surely lose any chance at being reelected. It might be the only time this President instituted a lawsuit, won it and lost it no matter what the outcome, and argued against himself while doing it.