Decision Season

Earlier this week, the Obama administration decided not to ask the whole 11th Circuit Court of Appeals to hear a constitutional challenge to the Affordable Care Act (ACA), shortening the timetable for the various cases against the ACA reaching the Supreme Court and, according to some, setting the Court to rule smack-dab in the middle of election season. Earlier this year, a three-judge panel from the 11th Circuit Court of Appeals had ruled the law's "individual mandate" -- the provision requiring people to pay a tax if they do not purchase insurance -- unconstitutional. But before we speculate whether and when the Supreme Court will uphold the ACA, we should consider the question of whether it will decide to decide at all.

Unlike the appeals court rulings on the ACA in the Sixth and 11th circuits, the majority opinions in the two cases decided by the Fourth Circuit earlier this month -- Virginia v. Sebelius and Liberty University v. Timothy Geithner -- did not rule explicitly on whether the legislation was constitutional. Instead, both lawsuits were dismissed for a lack of jurisdiction. Under Article III of the Constitution, the power of the federal courts derives from their ability to decide "cases and controversies." Since its inception, the Supreme Court has read this to mean that federal courts cannot decide constitutional cases in the abstract. You can't sue the government because you happen not to like something it does; the party bringing the suit must have "standing" -- that is, some direct stake in the application of the law. The Fourth Circuit essentially held that there was nothing for them to adjudicate.

In Virginia v. Sebelius, the court found that Cuccinelli and the state of Virginia did not have standing. The individual mandate, wrote Judge Diana Motz, "imposes no obligations on the sole plaintiff, Virginia." The state of Virginia is not directly affected by the mandate provision and hence has no standing to challenge its constitutionality, the appeals court reasoned. In Liberty University v. Geithner, Judge Motz held that the suit should be dismissed based on the related doctrine of "ripeness." Because the relevant provisions of the ACA do not go into effect until 2014 and federal law prevents pre-enforcement challenges to revenue collection, the court also lacked jurisdiction in the case of Liberty University's suit, even though Liberty University was directly affected by the ACA's employer mandate and would therefore not have the state of Virginia's standing problem.

Ordinarily, the decision of a three-judge panel composed of Clinton and Obama appointees would not be taken as a sign of what the Republican-dominated Supreme Court will do. But because the Fourth Circuit's ruling rested on jurisdictional grounds, some pundits see them as indicative of how the high court would rule, particularly if a Supreme Court decision comes out during election season. Last term's Arizona Christian School v. Winn was the latest in a lengthy string of cases in which Supreme Court conservatives have used narrow standing rules to limit access to the courts. Given this history, is it possible that the Supreme Court will follow the lead of this Fourth Circuit panel and refuse to rule on the constitutionality of the ACA for the time being?

Perhaps, but I would not advise such optimism. In the words of Yale Law School's Jack Balkin, "standing doctrine is among the most unprincipled and arbitrary parts of American constitutional law." When the Supreme Court declines to hear a case based on lack of standing, it is almost always because they are unsympathetic to the substance of the constitutional claims being pursued. So while the conservatives on the Rehnquist and Roberts Courts have consistently voted to make it more difficult to bring lawsuits regarding the separation of church and state and the environment, they have taken a much more generous view of standing where plaintiffs are challenging affirmative-action laws.

In other words, the fact that the Roberts Court has issued rulings narrowing standing rules does not mean that they will be moved by the particular standing arguments made by the Fourth Circuit. The Court rarely places priority on its self-imposed jurisdictional rules if it clashes with strongly held substantive values.

This is not to deny that, as the Atlantic's Andrew Cohen speculates, "Justice Anthony Kennedy or Chief Justice John Roberts [may] see in the jurisdictional issues a way out, a compromise, that would both dispose of the pending cases and help protect the Court from the inevitable political criticism it will receive no matter how it rules on the merits." Such an outcome is certainly possible, particularly because a ruling issued this term would probably come down right in the middle of what is likely to be the most polarized election campaign since 1964. A majority of the Court could decide that, indeed, discretion is the better part of valor. But it is only likely to do so if at least one of its Republican appointees is dubious about the constitutional challenge on its merits. If a majority of justices are convinced that the ACA violates the Constitution, they won't have any problem taking jurisdiction of the case.

Liberals who see a jurisdictional dodge as a potentially attractive escape may also want to be careful what they wish for. Any reprieve would be temporary. Once the law fully goes into effect in 2014, standing requirements will not provide much of a barrier, at least for cases like the one brought by Liberty University, even to skeptical judges. If Obama is re-elected, the chances of getting a favorable ruling can't be worse and may be better; if Mitt Romney or Rick Perry gets to select a replacement for the ailing Ruth Bader Ginsburg, on the other hand, the chances that the Affordable Care Act would survive a Supreme Court review drop precipitously.

Ultimately, the best outcome would be for the Supreme Court to reject the unserious arguments against the constitutionality of the Affordable Care Act and uphold the legislation. But if the Court is going to reject the bill, it is probably better for democracy that it be done during a time of maximum political visibility, rather than by dodging the issue initially and then striking it down with the campaign safely over. Should the Court dodge the issue to avoid a strong public response and then strike the bill down later, this would be the worst of all worlds. The public should be aware that, among other things, presidential elections are contests between competing constitutional visions.

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