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Spring 2012 SCOTUS ruling: What it could mean for health reform

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J. SCOTT APPLEWHITE/ASSOCIATED PRESS One key outcome of last week’s appeals court ruling on health reform’s constitutionality: We now have a relatively solid timeline for a Supreme Court ruling.

There are two appellate court rulings on the law now. The Sixth Circuit Court of Appeals says the law is constitutional; the Eleventh Circuit says it’s not. Those conflicting rulings, Supreme Court observers say, make it incredibly likely that the justices will take up the case in its next term, which ends June 30. So by next July, we’re just about certain to have a final ruling on the Affordable Care Act.

That certainty sets off a new round of tea-leaf reading among Supreme Court observers. What factors outside the courtroom could come into play, at that time, that could influence the justices’ decision?

A pretty decent number, it turns out.

Looming largest is the 2012 presidential election, which will be in full swing when the justices are expected to issue an opinion. The justices are well aware that whatever decision they issue, it will be a political firebomb. That could, some contend, give the court a reason to be more cautious in its decision-making. “The timing, I think, supports the legislation,” says Charles Fried, a law professor at Harvard who served as solicitor general under President Ronald Reagan. “A decision against it would be incredibly political, while a decision for would leave it as much of a political issue as it was before, still very hot. Politically, I’d say it cuts in favor of the statute.”

To be sure, there’s a lot of debate over how the election factors in. George Washington University’s Orin Kerr says he expects the court to think more “long term” in its decision, looking past a relatively short-term campaign season. If the election does factor in, Kerr also isn’t so certain whether that favors the administration. “Even if the justices wanted to be influenced by the election, I don’t think that clearly comes out in the law’s favor,” Kerr says. “If they’re willing to do Bush v. Gore, I don’t think [an election] will hold them back.”

There’s also a Supreme Court docket that’s starting to take shape. As it stands, the court could be taking on a number of politically-charged cases. Arizona’s controversial immigration law could come up around the same time (after the Obama administration blocked the law, Arizona has asked the Supreme Court to take up the issue). A charged affirmative action case out of Michigan may find its way onto the agenda. A lineup of hot-button decisions, University of Santa Clara’s Brad Joondeph predicts, could put pressure on the justices not to issue a series of 5-4 rulings that all cut in the same direction.

“It creates a political difficulty for the court,” says Joondeph, who runs the ACA Litigation Blog. “If immigration, affirmative action and the health reform law rulings all come down in the span of two weeks, all with the same coalitions, that makes the court look incredibly political. These are all moving pieces together.”

Joondeph also points to another factor, outside the court’s control, that could come into play: what parts of the appellate decisions they’re asked to opine on. This particularly comes into play with the 11th Circuit Court of Appeals, which got the most attention last week for ruling the individual mandate unconstitutional. Less noticed was the three-judge panel’s decision on the constitutionality of another part of the law, the expansion of Medicaid up to 133 percent of the Federal Poverty Line. That part of the law, the court says, was indeed constitutional.  

The states, then, could ask the Supreme Court to review that second part of the decision where they lost. They could petition for a second shot at overturning the Medicaid expansion. And that, Joondeph thinks, opens up a space for the court to frame its decision.

“That potentially gives the court a way of resolving the case that gives something to the proponents by upholding the Medicaid expansion while potentially striking down the mandate,” Joondeph says.

Would such a decision be considered a win-win for the two sides? Not exactly — the Medicaid expansion is widely seen as constitutional, whereas the individual mandate is the much more controversial part of the law. In other words, confirming the Medicaid expansion’s constitutionality wouldn’t make for much of a consolation prize for reform supporters losing the individual mandate.

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