Earlier today, federal Judge Henry Hudson ruled that the Affordable Care Act’s individual mandate is unconstitutional. While this is an important victory for opponents of the health reform law, it’s obviously not the end of the road. The Obama Department of Justice will appeal, as opponents of the individual mandate appealed other decisions upholding its constitutionality.
In a background briefing with reporters last week, one Administration official said he does not expect an appeals court ruling in the Virginia case before the second half of 2011. In a press conference today, Virginia Attorney General Ken Cuccinelli – spearheading the case – said he expects the appeals process to take one year. A Supreme Court ruling after that would take an addition year, he said.
Cuccinelli wants the Department of Justice to agree to bypass the appeals process in the Fourth Circuit and ask the Supreme Court to look at the case right away. The DOJ is unlikely to do this. Let’s have a look at Cuccinelli and DOJ’s motivations.
Most legal experts, including Judge Hudson, expect the Supreme Court to make the final decision on whether the individual mandate is constitutional. In all likelihood, the high court will decide to examine one of the lawsuits challenging the mandate. There are some 20 such legal challenges ongoing or under appeal across the country. My guess is Cuccinelli, who is ambitious, high-profile and media savvy, wants his case to be the one that goes before the court.
The Justice Department, meanwhile, may not agree to expedite the process and skip the Fourth Circuit. Philip Klein of the American Spectator explains why:
During the Bush era, the Fourth Circuit developed a reputation as the most conservative in the nation, in large part because it sided with the administration on a number of key national security decisions, particularly involving terorist detainees.
But the balance has shifted dramatically since then, and currently Democratic appointees outnumber Republicans by an 8-to-5 margin, with two vacancies remaining.
At the start of the Obama administration, Republicans had the slight edge over Democrats, 6-to-5. In July of last year, chief judge and Republican appointee Karen Williams had to step down due to early onset of Alzheimer’s. Since then, Obama has been able to get three of his nominees to the court confirmed — Judges Andre Davis, Barbara Keenan and James Wynn.
