Democrats are mapping out their strategy in a desperate attempt to salvage healthcare reform following Monday’s court decision declaring Obamacare unconstitutional.
The Obama administration and the Democrats see advantages in stalling the judicial process, while Republicans want to fast track the case to what most believe will be the final arbiter, the Supreme Court.
|Circuit Judge Roger Vinson
Circuit Court Judge Roger Vinson handed down a ruling declaring that the individual mandate requiring Americans to buy healthcare insurance is unconstitutional, and said the entire bill should be voided as a result. The Department of Justice is appealing Vinson’s ruling to the 11th Circuit Court of Appeals.
The administration’s first legal maneuver probably will be to file a request for a stay with the circuit court, legal experts say. If the stay is granted, the administration will be free to resume its bureaucratic implementation of the healthcare bill.
Healthcare reform advocates say that, as the administration moves ahead with implementation, millions of Americans will begin to benefit from the law’s consumer protections, “making it less likely that the appeals court judges and eventually the Supreme Court justices will strike down massive legislation that’s already the law of the land,” The Hill newspaper reports.
“I think the litigation will be less attractive at that time,” said Tim Jost of the Washington and Lee University School of Law.
If the circuit court does not grant the stay, however, the healthcare reform machinery, which already faces stiff opposition in the Republican-controlled House that rules the purse strings, would grind to a halt.
With four court opinions now on the table — two for the constitutionality of the bill, two against — several Republican attorneys general say they think the administration is playing the “delay game” at Americans’ expense.
Texas Attorney General Greg Abbott told Fox News that going through the appeals court is a waste of time and the case should go straight to the Supreme Court.
Fox News Channel’s Greta Van Susteren said on Monday: “This could be done within 30 days if they really cared about this matter.
“This is a national emergency. Healthcare matters. We need a decision so that we can figure out what our health policy is or is not.”
If Obamacare does go to the Supreme Court, no one should feel too confident about which way the decision will go, legal observers say.
With the court now including four conservative justices and four liberals, plus swing voter Anthony Kennedy, most observers believe Kennedy will cast the decisive vote.
But the constitutionality of the individual mandate is “a complicated question that might not get decided along predictable ideological lines,” Politico observes.
Chief Justice John Roberts is among the four conservatives on the court, but he is “not an adventurer” and therefore might not go so far as to strike down the mandate, according to Charles Fried, a former solicitor general under President Ronald Reagan.
But former Florida Attorney General Bill McCollum, whose lawsuit laid the basis for Vinson’s ruling, told Newsmax on Monday: “My gut tells me that the [Supreme] Court will declare the whole law unconstitutional, and Congress will have to start over.”
Democrats also are formulating another strategy: They are laying the groundwork to argue that only the mandate should be stricken instead of the whole law, according to The Hill.
“There is no reason why the rest of the statue, including the insurance reforms, shouldn’t go forward without the individual mandate,” Jost declared. It would be “more difficult” but “not impossible” to move forward without the mandate, he said.
And even if the mandate is struck own, sources tell The Hill that “could make it more likely that Americans would clamor for an alternative so they can keep the law’s consumer protections.”
Meanwhile, Republicans have urged the White House and the Justice Department to skip the appeals process and head directly to the Supreme Court. "This healthcare law remains a major source of uncertainty for small businesses," House Speaker John Boehner said Monday afternoon.
The case that Judge Vinson ruled on resulted from a lawsuit filed by 26 states and the National Federation of Independent Business. Dozens of Republican lawmakers, including Boehner and Senate Minority Leader Mitch McConnell, filed court briefs opposing the healthcare reform law. The lawsuit grew from 20 to 26 states last month after newly empowered Republican governors asked to join.
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