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Tuesday, February 01, 2011

PPACA and three-judge panels

Judge Vinson's decision yesterday striking down all of PPACA (savaged by Rick and Brian and others, lauded by still other commentators) brought to my mind an interesting procedural question: Why did congressional Democrats not provide in PPACA for expedited judicial review, through a three-judge district court, with automatic review to SCOTUS? Would it have been better for the President and Democrats if they had done so?

Several reasons for not fast-tracking are clear. By delaying an ultimate decision for several years, Democrats probably hoped to give the law time to kick-in and become popular, as people come to realize and enjoy its benefits. The Court thenwould be forced to strike down a very popular piece of significant legislation, which it may be less willing to do. Democrats also probably hoped that the composition of the Court might change by 2012 or 2013 (when any one case finally would get to the Court). To the extent they thought of this at all, they might have assumed that no challenges could have been brought so soon, since the individual mandate does not take effect until 2014, arguably rendering lawsuits brought now unripe (a position most district courts have rejected), and delaying a Court ruling until as late as 2017 or so. Finally, perhaps there was some hubris at work--in 2009-10, when the bill was being debated and passed, no one believed the constitutional arguments (especially "inaction" and broccoli) would actually work with any sensible judges. [Update: On seeing the comments, I think this is a major point--not hubris necessarily, but that no one in Congress or the Administration believed the constitutional arguments were likely to sway because they reflected an out-there libertarian/federalist mix that only a small number of legal scholar espoused. The assumption was that any arguments were policy-based, not constitutional].

On the flipside, it seems as if the politics of this sort of slow, case-by-case judicial review work against the President and the Democrats. While PPACA perhaps will become popular as people realize its benefits, it also is reasonable to believe that every district court opinion such as yesterday's chips away at the law's popularity ("Hey, a judge just said it's unconstitutional, there must be something wrong with it"). As I noted the other day, every decision going against the law plays in the press like a "defeat" for Obama. On the other hand, decisions going the other way, by upholding the status quo, get little play and are not seen as individual "victories." This also puts the President and/or congressional Dems to the burden of talking to the public about PPACA and why the opinion of one district court is a) wrong (or at least inconsistent with what other district judges have done) and b) meaningless until we work through several layers of appellate review. Perhaps this sort of public education on legal process is a good thing--but it is exhausting, time-consuming, and drags the President away from what he wants to do moving forward. Finally, a decision like yesterday's perhaps emboldens Senate Republicans pushing repeal. In the face of a decision such as this one, might four Democrats defect and vote for repeal (all 47 Republicans have announced their intentions to vote for repeal)? And what sorts of political pressure would build on the President then?

PPACA is often compared to the Civil Rights Act of 1964, in terms of being significant progressive legislation. In 1964, all constitutional challenges to federal legislation went to three-judge courts (this was repealed in 1988), so the constitutionality of the public-accommodations provision of Title II was resolved by SCOTUS before the close of 1964. Congress often provdes for three-judge district courts when it enacts controversial legislation (such as many of the internet-indecency bills of the late 199s).

Would it have been better off following that path here?

Posted by Howard Wasserman on February 1, 2011 at 11:57 AM in Civil Procedure, Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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My recollection is that nobody bothered to give it any thought, or maybe they just didn't realize it wasn't there because nobody bothered to actually read every word in it.

Posted by: Adam | Feb 2, 2011 12:57:36 AM

My recollection is that proponents of the PPACA didn't bother to give any serious consideration about the constitutionality of the Act before they voted on it.

Posted by: bacchys | Feb 1, 2011 7:34:24 PM

My recollection is that arguments that the mandate is unconstitutional were not taken seriously until after the law was enacted. If that recollection is right, that presumably would explain why this option wasn't considered.

Posted by: Orin Kerr | Feb 1, 2011 3:21:15 PM

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