Joyce L. Arnold: Liberal, lesbian, Independent, equality activist, writer.
An interesting piece from Scott Lemieux, at American Prospect: Will the Supreme Court rule on the Affordable Care Act during the height of the 2012 election campaign?:
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.
Lemieux raises the possibility that SOTUS might decide not to decide … that is, they could choose not to consider the question of whether or not to uphold ACA. The Fourth Circuit “did not rule explicitly on whether the legislation was constitutional.” Rather, both cases decided by the Fourth 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.
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.
Lemieux advises caution regarding the possibility SOTU will take the “standing” route, though doesn’t rule it out.
… 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.’ …
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 … 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.
Meanwhile, back in the world of millions of un- and underinsured, health care continues to be treated as a product, a commodity. And looking at the three branches of government, there doesn’t seem to be any hope of that changing.
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