Ruth Marcus
Columnist November 15, 2011

The Supreme Court, or so we are told, follows the election returns. Perhaps, but it shouldn’t anticipate them — or, for that matter, rule with the campaign calendar in mind.

The proper legal course — and, as it happens, by far the best thing for the country — is for the court to decide on the constitutionality of the health-care law by next summer, despite the fact that the opinion would come down in the heat of President Obama’s reelection campaign.

Ruth Marcus is a columnist and editorial writer for The Post, specializing in American politics and domestic policy. View Archive

The court’s decision to hear the health-care cases came with a built-in escape hatch. The justices ordered arguments on an obscure but important procedural matter: Does the challenge to the requirement that individuals purchase health insurance come too early, not only before the law has taken effect but before any individual has had to pay the penalty for failing to obtain coverage?

The specific question involves the 1867 Anti-Injunction Act, which bars courts from hearing any challenge to tax collection efforts prior to assessment. Because the health-care law assigns collection of the fine for failing to obtain coverage to the IRS, this argument goes, the Anti-Injunction Act prohibits hearing the case at this stage.

If that interpretation is correct, the constitutionality of the individual mandate could not be decided until 2015 — after states have devoted enormous effort and expense to setting up new health-care exchanges and the “shared responsibility payment” for those without insurance is due.

Imagine the disruptions to the health-care system — not to mention the political system — if the mandate were ruled unconstitutional then. How much better it would be for the country if the matter were decided by next summer, not three-plus years later.

A preview of arguments on the Anti-Injunction Act came in a pair of dueling decisions last week by the federal appeals court in the District of Columbia. The case pitted a conservative lion, senior judge Laurence Silberman, against a conservative lion cub, George W. Bush appointee Brett Kavanaugh.

In the majority opinion, Silberman, joined by Democratic appointee Harry Edwards, found that the act did not apply and went on to uphold the constitutionality of the individual mandate.

Kavanaugh, dissenting, differed with Silberman on the technical interpretation of the statute but then argued passionately that it would be the more prudent course for courts to hold off deciding the law’s constitutionality. After all, he noted, a future Congress could choose to revoke the individual mandate.

Or — and here is where things get interesting — a future president “might not enforce the individual mandate provision if the president concludes that enforcing it would be unconstitutional.”

In a footnote, Kavanaugh elaborated: “Under the Constitution, the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”

Hello, President Romney? Are you listening?

Is it really true that a president — even after the Supreme Court has spoken — can nonetheless substitute his own constitutional judgment and decline to enforce a law?

If so, it seems unlikely that a president would use this authority — and unwise to do so. The sole authority Kavanaugh cites for this bold proposition is Justice Antonin Scalia’s concurring opinion in a 1991 case involving the constitutional status of special tax court judges, in which Scalia noted that a president has “the power to veto encroaching laws or even to disregard them when they are unconstitutional.” Scalia makes no mention of presidential authority in the face of intervening or anticipated court rulings.

Kavanaugh, who clerked for Justice Anthony M. Kennedy, was no doubt thinking about the high court’s impending review when he argued that judges “leave these momentous constitutional issues for another day — a day that may never come.”

However heartfelt, the arguments of Kavanaugh and other advocates of constitutional can-kicking are unconvincing. Any law that has yet to take effect could be changed by a future Congress or ignored by a future president. Yet for the court to hold off on that basis would itself amount to a political act, keeping the controversy alive and encouraging the sort of constitutional mischief-making that Kavanaugh suggests is within presidential prerogative.

It remains, as Chief Justice John Marshall explained in Marbury v. Madison, “emphatically the province and duty of the Judicial Department to say what the law is.” The sooner the Supreme Court says so, whichever way it rules, the better off the country will be.

ruthmarcus@washpost.com

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