Wednesday, February 02, 2011
ACA Litigation Blog
This blog about the health care reform cases is great, if you are interested. It has links to the filings and rulings for all of the cases. (Many were dismissed.) It also has blow-by-blow commentary.
For example, the issue of a stay and the status after Vinson's recent ruling is taken up in this post. I can not imagine that the SC would not grant such a stay, but I don't see why it would have to do so. I think a lower court will grant one, and if it is appealed to the SC that the SC will just not take the matter up. But maybe I am missing something here. I think the SC will want to avoid this hot potato as long as it possibly can. Not forever, but time does clarify, and the SC might have some hope that time will force Congress to change its position.
If Congress were to drop the individual mandate, I think it would be very easy for the administration to get Vinson overruled on severability. See this ACA Litigation post. There has already been some discussion in Democratic circles about dumping the individual mandate. Howard Dean, for example, was talking about it very recently. It is possible that an agreement could be reached between the GOP and Democratic senators to replace the individual mandate with something else. Since the GOP has the house, any Senate compromise would be likely to go through the House easily.
Because of the bad hand in 2012 for Democrats in the Senate (they have to defend a huge number of seats compared to the GOP), it is unlikely that the Democrats can be confident of being in a better position later. So the wild card may be the president. He could veto any such compromise, but given that Obama is up for reelection in 2012, I doubt he would.
Anyway, if I were on the SC I'd want to wait until the last possible moment in the hopes that this cup would be taken from me.
PS: Somewhat on the health care topic - Ann Althouse blogs about a Harvard professor at the Constitutionality hearing. This is regarding the question of whether constitutionality rulings should be based on what a judge believes to be the law or the policy outcomes of the ruling:
Now, Fried is a professor at Harvard Law School. Of course, he knows lots of people who think judges should decide cases based on "whether they think their rulings would have good or bad policy consequence" and not on some sort of "understanding of the meaning of the Constitution." I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.
But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.