The Supreme Court’s review of the constitutionality of President Barack Obama’s signature healthcare initiative is on a collision course with the 2012 election calendar.
Virginia Attorney General Ken Cuccinelli, speaking to the media after a hearing in Richmond, Va., on the latest legal challenge to the Patient Protection and Affordable Care Act, says the “most likely” target date for a Supreme Court ruling is June of 2012 — the precise point when the presidential race shifts into high gear.
“It will be teed up right when the fall of 2012 rolls around,” Cuccinelli said. “So the timing is kind of extraordinary — but not of our own making.”
One indication of the national significance of the ongoing legal challenges to Obamacare: Tea party protesters held a “Hands Off My Healthcare Rally” outside the U.S. 4th Circuit Court of Appeals, where Cuccinelli and federal attorneys fielded questions from a three-judge panel looking into whether the individual mandate — the requirement that citizens either purchase insurance or pay a penalty — exceeds the federal government’s enumerated powers under the Constitution.
Some legal scholars had predicted the case would not reach the Supreme Court until 2013. And Cuccinelli received a setback last month when the Supreme Court announced it would wait for the case to work its way through the appellate courts before beginning deliberations.
The various lawsuits filed against the federal government have progressed rapidly, however. Cuccinelli concedes federal attorneys could delay the appellate process. But he doubts it could stall the plethora of lawsuits now aiming to block Obamacare.
“It’s only partially within their control . . . they can try to delay it somewhat in some cases, but the last count I knew of there were 31 cases running across the country, all at various points. By June 8, four of them will have been argued at the circuit court level, and the 2010 [Supreme Court] term isn’t even over yet,” Cuccinelli said.
“It strikes me as not terribly likely that this will get past the 2011-2012 term of the Supreme Court. It’s possible, but the odds are in favor of the next term,” he added.
If the Supreme Court were to void key provisions of the president’s primary legislative accomplishment during the heart of the 2012 election season, it would toss a serious monkey wrench into the president’s re-election campaign.
Cuccinelli credited the healthcare debate with having an “enormous, enormous” political impact on the midterms, which led to the broadest GOP landslide in nearly 70 years.
“It remains to be seen how big an impact it will have in 2012,” he added. “But it’s hard to imagine that the president, for whom this is the crowning achievement legislatively so far, wouldn’t see it have a great impact one way or the other.”
Cuccinelli’s remarks followed oral arguments presented Tuesday to the three-judge panel on the Fourth Circuit court. There are 13 judges on Virginia’s 4th U.S. Circuit Court of Appeals. Eight are Democratic appointees, and five are Republican appointees. The three judges assigned to hear Virginia’s lawsuit at the appellate level were determined by random computer selection.
The luck of the draw wasn’t in Cuccinelli’s favor Tuesday. President Obama appointed two of the three judges assigned to hear the appeal. The third was appointed by former President Bill Clinton.
That didn’t appear to faze Cuccinelli, however. He knows the various lawsuits against Obamacare are headed for a Supreme Court review anyway.
“We really play with the cards we’re dealt, and make the best case we can,” he said. “These chips will fall where they may, and then we’ll be off to the Supreme Court.”
Cuccinelli expects the 4th Circuit Court to render its verdict on the case by June.
The appeal stems from a December 2010 ruling by U.S. District Judge Henry E. Hudson that Obamacare’s requirement that individuals must purchase healthcare “exceeds the constitutional boundaries of congressional power.”
In throwing out the individual mandate, Hudson allowed implementation of other aspects of healthcare reform to continue.
Cuccinelli wants the entire Affordable Care Act nixed, however, because the legislation lacked a severability clause, or language that specifies the remainder of the bill will take effect even if one part of it is struck down.
Federal attorneys, on the other hand, want the three-judge panel to throw out Cuccinelli’s lawsuit altogether, on the grounds that the state lacks the legal standing to challenge a federal law. Cuccinelli agrees that usually would be true. But when a law is unconstitutional, the supremacy of the federal government in law making no longer holds, he said.
The 4th Circuit panel also heard arguments Tuesday in a separate appeal related to Obamacare, brought by Liberty University.
In November 2010, U.S. District Judge Norman Moon dismissed Liberty University‘s legal challenge to Obamacare.
Moon ruled that not purchasing healthcare insurance represented an economic choice, and therefore could be regulated under the Commerce Clause of the constitution.
Cuccinelli said it was obvious from the judges’ questions Tuesday that they “struggled with the unprecedented nature” of the government’s argument that it has the right to regulate commerce — the purchase of insurance — that is not actually taking place.
Article 1, Section 8, Clause 3 of the U.S. Constitution states that Congress shall “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
If the government had power to enact regulations forcing citizens to engage in economic activity, its authority would be “virtually unlimited,” said Cuccinelli.
“What we are fighting for is the system of limited government established by our Founding Fathers . . . even the president and the Congress must operate within the restrictions placed on them by the Constitution,” Cuccinelli said.
In January, another federal judge, Roger Vinson, issued a ruling in a Florida lawsuit that was joined by 25 other states.
Vinson declared that ObamaCare was unconstitutional, and struck down the entire law.
The Justice Department has appealed that ruling to the 11th Circuit Court, which is expected to rule on the case in June.
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