The State of Virginia has asked the United States Supreme Court to hear and decide its case against the federal government involving the constitutionality of the Patient Protection and Affordable Care Act (PPACA or ACA), often referred to as Obamacare. In the case of Virginia v. Sebelius, portions of Obamacare, specifically, the individual mandate had been declared unconstitutional by a federal district court judge.
Virginia Request to Supreme Court Includes All Obamacare Cases
The Virginia request for a writ of certiorari also requests that the Supreme Court also take jurisdiction over the other cases involving Obamacare around the country that are pending before various appellate courts. This also includes the major case of Florida v. HHS, in which Judge Roger Vinson of the Northern District of Florida declared the entire PPACA unconstitutional and involves 26 states. It also includes the case of Mead v. Holder in which Judge Gladys Kessler of the District of Columbia declared that Congress was free to regulate citizens’ “mental activity” under the Commerce Clause. If the Supreme Court grants Virginia’s request it could move a final decision up on the matter by a year or more.
DOJ Agrees Supreme Court Needs to Rule, But Not Now
In opposing the Virginia request, the Department of Justice agrees that ultimately the Supreme Court will be the forum that decides the constitutionality of the ACA. The principle issue revolves around the individual mandate and the Commerce Clause of the US Constitution. The issue is essentially the same in all the cases that are now pending in four courts of appeal.
While admitting that the Supreme Court’s say will be needed to finally settle this matter, DOJ denies that the uncertainty of the legality of Obamacare is currently imposing any burden upon Virginia, and by implication, any other state. While bringing the Court up to date on the various suits around the country, the government does not specifically address Virginia’s request that all cases be joined together immediately in the Supreme Court.
Government Opposition to Virginia Request Mirrors Other Delay Tactics
In some respects the Department’s request to the Court is in the same vein as the Motion to Clarify that was filed in the Florida case, asking Judge Vinson what he meant by unconstitutional. In each of the appellate court cases, the government has sought some reason to delay the Supreme Court’s consideration of health care reform, while admitting that the Court will be the final arbiter of the issue. The government appears to be pursuing a strategy with the Court that is as much political as legal.
Patient Protection and Affordable Care Act Being Phased In
Many aspects of Obamacare such as the creation of state insurance exchanges and certain mandates for insurance coverage either are in effect or will be imminently. The full effects of the individual mandate do not take effect until 2014. The longer the delay prior to a Supreme Court decision, the more difficult the decision becomes as the infrastructure for implementing the law continues to be established. When the Court is presented with a fait accompli, it is difficult for the Court to issue opinions and orders to dismantle something all ready in place.
Delay Affects the Court’s Position as the Law Takes Effect
The political and legal history of the constitutionality of Social Security provides a look at the difficulties imposed upon the Court by transformative legislation that has had time to take root. The Social Security Act (SSA) became law on August 14, 1935. Unlike the phased in programs of the PPACA, the SSA’s effects were immediate.
By May 24, 1937 when the Supreme Court issued its ruling on the Constitutionality of Social Security, there had been collected $150,000,000 in payroll taxes, a huge bureaucracy was in place and some claimants were all ready getting benefits. The Court was faced with a fait accompli and came up with a convoluted opinion in Helvering v. Davis, 301 U.S. 619 (1937) to uphold a law which would have been a nightmare to dismantle.
The government’s opposition to Virginia’s request to have immediate Supreme Court consideration of Obamacare appears to try and recreate the situation of 75 years ago and hope that the court’s ultimate decision will be more political and practical than based upon considered constitutional jurisprudence.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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