WASHINGTON — After a year and a half of legal skirmishing, President Barack Obama’s beleaguered health care law has arrived at the Supreme Court riding a surprising winning streak and carrying a constitutional stamp of approval from prominent conservative judges.
Only three of the 12 appellate judges who have reviewed the law have decided it is unconstitutional to require all Americans to have health insurance. Not a single appeals court judge has said the entire law must be tossed out, the position advocated by Florida and 25 other Republican states leading the legal assault.
The Supreme Court is expected to announce as soon as Monday that it will hear the Florida case, the largest and broadest challenge to the Patient Protection and Affordable Care Act.
The string of appellate victories may not predict how the Supreme Court will decide the case. But some legal observers believe the recent decisions lay out a road map for preserving the law that may appeal even to some of the Supreme Court’s more conservative members.
“They show that smart, principled conservatives can decide this is within the broad reach of Congress’ power, even if they might think it is bad policy,” said Richard Garnett, a law professor at the University of Notre Dame who was a clerk to former Chief Justice William Rehnquist.
When the states and the National Federation of Independent Business filed suit in March 2010, they questioned whether Congress, under the guise of regulating commerce, could place an unprecedented requirement on Americans to buy health insurance starting in 2014.
The so-called individual mandate was designed to spread risk more broadly and control insurance premiums, enabling the federal government to prohibit insurers from denying coverage to patients with pre-existing medical conditions, a key promise of the law. Without a mandate, Americans would possibly be able to avoid buying insurance until they got sick, dramatically driving up premiums.
The insurance requirement became the focus of the litigation and initially sparked a partisan split among trial judges. But more recent rulings from appellate courts around the country have significantly muddied the liberal-conservative divide.
Only the U.S. appeals court in Atlanta has struck down the mandate in a 2-1 decision, with one Republican appointee and one Democratic appointee in the majority. They called the law “breathtaking in its expansive scope.”
Two other appellate courts with prominent judges appointed by Republican presidents have categorically rejected the legal attacks on the insurance mandate.
In June, Judge Jeffrey Sutton, a former clerk to Justice Antonin Scalia, wrote a lengthy opinion for the 6th Circuit Court of Appeals in Cincinnati upholding the law and concluding that Congress’ powers under the Commerce Clause give it very broad authority to regulate markets, including health insurance.
Using similar reasoning, Judge Laurence H. Silberman, an influential conservative and longtime Scalia friend, last week also upheld the law in an opinion for the U.S. Court of Appeals for the District of Columbia. Silberman explicitly rejected the partisan attack on the law, writing that criticism of the mandate “seems to us a political judgment,” not evidence it violates the Constitution.
Both Silberman and Sutton cited Scalia’s opinion in 2005 upholding strict federal regulation of marijuana in the case of Angel Raich, a Californian who used home-grown marijuana to relieve her pain. “If Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption,” Sutton wrote, “it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care.”
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have sounded a similar theme at times, saying judges should be wary of second-guessing political decisions. On the other hand, legal experts believe Justice Anthony M. Kennedy, usually the court’s swing vote on close cases, could vote for the challengers based on his strong commitment to federalism. Justice Clarence Thomas is thought to be a firm vote against the law.
A second leading conservative judge on the D.C. court offered another path for the Supreme Court to follow in rejecting the legal challenges to the health care law, at least for now.
Judge Brett Kavanaugh, a top White House lawyer under President George W. Bush and a friend of the chief justice, concluded it is premature for any federal court to consider the constitutionality of the insurance mandate because it hasn’t taken effect.
Citing a 19th century law known as the Anti-Injunction Act, Kavanaugh said judges cannot decide a challenge until 2015, when the first person has paid a tax penalty for failing to have health coverage — echoing legal reasoning offered by the 4th Circuit Court of Appeals in Richmond, Va., in September.
The appellate decisions have done little to calm the partisan passions aroused by the health care law. Not since the 1930s has the Supreme Court faced such a distinctly partisan challenge over national regulation. The court’s four liberals, all Democratic appointees, will almost surely uphold the law. The outcome depends on its five Republican appointees, conservatives whom cherish the idea that the Constitution puts limits on federal power that the court is duty-bound to enforce.
Addressing them directly, former Solicitor Gen. Paul Clement, the lead lawyer for the states, argues that the law, if put into full effect, would usher in a “brave new world” of Washington-driven healthcare. Only the Supreme Court can call a halt, he says, and preserve the idea of a limited federal government.
But the recent opinions by Silberman, Sutton and Kavanaugh also offer a caution to the Supreme Court, said Simon Lazarus, counsel for the National Senior Citizens Law Center.
“These are eminent conservatives, very smart, and they believe in judicial restraint,” he said. “Their message to the court is: Handle this case as judicial conservatives, not as libertarian radicals or political activists.”
The justices are likely to give early clues on Monday when they announce which of the appeals will be the basis for their decision and which issues they want lawyers to address in their arguments.