Jonathon Cohn has a
great overview of the current status of cases against the Affordable Care Act, and the major hurdles that opponents of the law face.
At the moment, the case against the law in the hands of the appellate courts. Three sets of cases are pending, each one before a different Circuit Court. Last week judges from the Fourth Circuit, which sits in Virginia, heard the first of these cases. Early next month, judges from the Sixth Circuit, in Cincinnati, are supposed to hear the next one.
The Fourth Circuit judges, all of them Democratic appointees, seemed openly skeptical of arguments that the Affordable Care Act is unconstitutional. But the Sixth Circuit panel will include two judges appointed by Republicans and just one appointed by a Democrat. Most experts figure they will be more sympathetic to the lawsuit challenging the law's constitutionality or, at least, to the parties bringing it.
And maybe they will be. But, on Thursday, the judges sent a letter to lawyers from both parties. In it, they asked the lawyers to write briefs on three procedural questions. Two of them are about "standing" and "ripeness." (Or at least what I understand those concepts to be.)
The first question asks whether the plaintiffs can show they have suffered an injury or face an "imminent injury," even though the law doesn't take effect until 2014. The other asks for details on the penalties for violating the individual mandate and the extent to which they would actually cause "injury and hardship." As legal expert Timothy Jost and journalist Timothy Noah have pointed out, the law specifically prohibits the federal government from using criminal penalties to enforce the insurance requirement.
These questions are critical because, if the plaintiffs can't demonstrate that the Affordable Care Act has caused or will "imminently" cause them hardship, then they arguably have no right to challenge the law. And the Sixth Circuit judges don't seem to be the only ones pondering these issues. The Fourth Circuit judges, in Richmond, made a big deal about this in last week's oral arguments.
Cohn asked Walter Dellinger, former acting Solicitor General in the Clinton administration, for his take on what this meant for the challenges to the law.
The order to brief the procedural issues is a hugely significant development, long overdue. It's about time, for heaven's sake, that attention is finally paid to the fact that there are no real lawsuits over the "mandate" at this time. None of the pending "individual mandate" cases is a real law suit because the government is not at this time mandating that anybody do anything....
It is bedrock conservative doctrine (which I believe is entirely correct) that the courts have the authority to opine about the Constitution only when doing so is actually necessary to resolve a real lawsuit. Once 2014 gets here, real plaintiffs can bring real lawsuits. And those real lawsuits will provide useful context for the judicial consideration of the issues....
The Wonk Room's Ian Millhiser has a similar analysis, concluding: "This kind of letter instructing the parties to brief additional questions is not unheard of, but it is somewhat unusual. It indicates that the court is troubled by these three procedural questions—or even, potentially, that the court is looking for a way to make the case go away."
The politically-motivated filings against the law—all rushed in the lead-up to the 2010 election—are at best premature. It wouldn't be surprising to see dismissals of these cases from both the Fourth and Sixth Circuits. Which doesn't mean the suits will go away, necessarily, but it would certainly lessen the threat they could pose to continued implementation of the law.