Health-Care Ruling: All Eyes on Justice Kennedy

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A federal district-court judge in Florida made a very unusual decision Monday when he overturned the entire Affordable Care Act. And while conservatives are celebrating by blasting out press releases and dashing off blog posts, they might pause to ask themselves whether such an extreme and unprecedented action really helps their cause.

The constitutionality of the massive health-care-reform law that President Obama signed last year has already been challenged in more than a dozen lawsuits. Most of the suits have been thrown out, while two judges—both Democratic appointees—have upheld it. In December, Judge Henry Hudson in Virginia overturned only one provision of the law, the requirement that every American adult must buy health insurance or pay a fine, commonly called the individual mandate. On Monday, Judge Roger Vinson—like Hudson, a Republican appointee—in Pensacola, Fla., went several steps further. Not only is the individual mandate beyond the scope of Congress's constitutional authority to regulate interstate commerce, Vinson ruled, but therefore the whole law is broken. "The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker," Vinson wrote.

All this chaos and contradiction in the courts guarantees only that the Supreme Court will ultimately have to weigh in. Expert court observers agree there is a real chance that the individual mandate itself will be overturned by the high court, but no one expects the court to take the drastic and unnecessary measure of overturning the whole bill. Courts have a longstanding doctrine of "severability," which means that when one part of a law is found unconstitutional the rest is unaffected. Vinson acknowledged this expectation, but then he blatantly ignored it. That drew a stern rebuke from the White House, which called his decision "a plain case of judicial overreaching."

Liberal experts on the health-care law expressed shock that Vinson would issue such a sweeping ruling, noting that while some provisions—like the rule that insurance companies must not exclude customers with preexisting conditions—might fairly be said to rely upon the individual mandate to work, many important parts of the bill do not. For example, two major ways the law will expand coverage are through creating statewide insurance exchanges and expanding Medicaid to cover everyone who makes less than 133 percent of the poverty rate. Neither of those provisions requires an individual mandate.

Unable to comprehend Vinson's legal logic, liberals are alleging partisan political motivations. "It's Bush v. Gore all over again, on steroids," says Simon Lazarus, public-policy counsel of the National Senior Citizens Law Center. Washington Post blogger Ezra Klein echoed the Bush v. Gore comparison. The invocation of the modern Supreme Court's most notorious decision carries a clear warning to the court: uphold Vinson's ruling, and half the country will view your decision, as it did the 2000 election, as illegitimate.

The court, knowing that its power is largely derived from the high esteem the public generally has for it, is sensitive to public opinion. Liberals will not be happy if the court rules as Judge Hudson of Virginia did, overturning the individual mandate. But they can try to find another way to force people into the insurance pool. And, if nothing else, they will still have the other provisions, like Medicaid expansion. But a ruling like Vinson's would be deeply divisive. Justice Anthony Kennedy, who is expected to be the swing vote on health-care reform, as he so often is on contentious issues, is known for being especially careful to try to craft decisions that will solidify a public consensus, or find a common ground. To sign onto a decision as sweeping as Vinson's would be especially out of character for him.

Of course, it would have its defenders. "We should place the blame for [Vinson's decision] where it belongs, and that's on Congress," says Jonathan Turley, a constitutional-law expert at George Washington University. Turley and other constitutional critics of the law say Congress rushed to craft a bill that created a constitutionally suspect mechanism and did not contain directions to the courts in the event that it was overturned. "It's important to remember that Democrats could have avoided all of this, but as enacted, the law did not include what's known as a 'severability clause,' which specifies that if one part of the law is struck down, the rest of the law stands," notes The American Spectator's Philip Klein. But that is a shaky argument: the judicial norm of severability is applied to laws that do not have a severability clause. It is also too obscure a point to affect public opinion.

The White House, recognizing that the spin wars will determine what effect Vinson's decision has on the future of the law, quickly organized a press call late Monday afternoon. Two senior White House officials predicted that Vinson's view will be rejected by higher courts, and they promised that implementation of the law will proceed. Vinson did not issue an injunction preventing implementation, recognizing that his ruling will be appealed and ultimately settled by a higher court.

Conservatives generally seem confident that Vinson's sweeping ruling helps shift the terms of the debate in their favor. The Tea Party Patriots celebrated "a big victory in the ongoing battle" against health-care reform, while the Heritage Foundation called it "a stinging defeat for the administration." Even some liberals seemed worried. Lazarus said the ruling "casts a shadow over implementation and strengthens the resolve of those who will resist it."

But they may all have this backward. By making such a sweeping ruling, which critics like Lazarus are labeling "very political," Vinson has delegitimized opposition to the bill. All that liberals and Democrats need to do now is repeat ad nauseam that overturning the law will mean no Medicaid expansion, no insurance exchanges, no protections for preexisting conditions—all more popular provisions than the individual mandate. Those parts of the law are the soda that washes down the mandate medicine; tying it all together helps the law's supporters, while isolating the unpopular provision helps opponents. If you want to see health-care reform overturned, you had better hope that the debate does not happen on Vinson's terms because you are much likelier to succeed with a more judicially modest approach that simply throws out the mandate and thus undermines many of the insurance reforms. It is harder for Democrats to make that politically toxic than it would be to attack going back to the status quo and tossing millions of the working poor off Medicaid.

Still, all that public pressure has power only if it matters to the high court's key conservative. As Turley says, "The law's opponents now have two very strong opinions moving toward the Supreme Court, and all eyes will be on Kennedy."