Obama's Go-Slow Approach at Supreme Court on Health Law May Build Support

A U.S. Supreme Court showdown over President Barack Obama’s health-care overhaul may be inevitable. His administration is in no rush for the court to get involved.

The Justice Department yesterday said it will oppose Virginia Attorney General Ken Cuccinelli’s request that the court immediately review the law, which a federal trial judge said was unconstitutional. The administration said the high court should follow its usual practice and first let an appeals court rule on Cuccinelli’s challenge.

The government’s approach would give it a chance to rack up lower court victories and perhaps build popular support for the law before the justices take up the case. It might also set the stage for a Supreme Court ruling only months before the 2012 presidential election.

“Litigating through the courts of appeals in the normal course suggests confidence in the government’s case,” said Christopher J. Wright, a lawyer with Wiltshire & Grannis LLP in Washington who has argued 28 Supreme Court cases and isn’t involved in the health-care fight. “In this particular case, it may produce unanimous judgments from appeals courts upholding the law.”

Cuccinelli said in an interview that states and businesses need to know whether the law is constitutional as soon as possible in light of rulings in Virginia and Florida against the administration.

“What really matters now is getting this decided for the people of this country so we can move on both with health care reform and just economically knowing how we’re going to have to operate,” he said.

Unusual Step

The Supreme Court has taken the step being sought by Cuccinelli, known as certiorari before judgment, only a handful of times in the past half century and generally only when the justices are simultaneously considering a related case that has cleared the appellate level.

The chances of the court agreeing to hear the case in the face of government opposition are “zero,” said Carter Phillips, a lawyer in Washington at Sidley Austin LLP who has argued more than 60 Supreme Court cases.

“I do not think the court will be inclined to decide this question without the benefit of having the views of at least one and probably more than one court of appeals on a very difficult question of constitutional law,” Phillips said.

Justice Department spokeswoman Tracy Schmaler said in a statement that certiorari before judgment would do little to expedite a final resolution. Cuccinelli said he isn’t explicitly asking the court to hear the case in its current term, which is scheduled to end in late June.

Plenty of Time?

The 4th U.S. Circuit Court of Appeals in Richmond is scheduled to review the Virginia challenge in May -- alongside an appeal of a different judge’s decision upholding the law. A ruling by that court this year would give the losing side time to seek Supreme Court review during its 2011-12 term, which begins in October.

Schmaler also said the provision at the center of the court fight -- the requirement that people either buy insurance or pay a penalty -- doesn’t take effect until 2014.

“There is more than sufficient time for the case to proceed first in the court of appeals,” Schmaler said in the statement. She declined to comment further on the government’s motivations.

Four trial judges around the country have split 2-2 on the law’s constitutionality. In the Virginia case, U.S. District Judge Henry Hudson said in December that the insurance mandate was beyond Congress’s power to regulate interstate commerce.

Democratic Appointees

Several appellate experts said they expect the government to fare better at the next level.

“They are more likely to get favorable decisions out of the courts of appeals,” said John Elwood, a partner at Vinson & Elkins LLP in Washington who served as a law clerk for Justice Anthony Kennedy, the potential swing vote on the nine-member Supreme Court.

The Justice Department might find an especially receptive audience at the 4th Circuit. Although that court developed a reputation as a conservative bastion in the 1990s and 2000s, it may now lean in the other direction. Of the court’s 14 active judges, eight were appointed by Democratic presidents and a ninth, Roger Gregory, was nominated first by Democratic President Bill Clinton and then by Republican George W. Bush.

Party affiliation has made the difference so far with health care. The two trial judges who declared the law unconstitutional -- Hudson and Florida’s Roger Vinson -- are both Republican appointees. The judges who upheld the law -- Norman Moon of Virginia and George Caram Steeh of Michigan -- were appointed by Democratic presidents.

Popular Support

The two other appeals courts set to consider the law have a more Republican flavor. The Cincinnati-based 6th Circuit, which will hear the Michigan case later this year, has four Democratic and 10 Republican appointees among its active members. The Atlanta-based 11th Circuit, which would hear an appeal in the Florida case, has five Democratic and six Republican selections.

Appeals courts generally assign cases first to a three- judge panel. Should the government lose at that stage, it could seek review by the full appeals court, perhaps pushing Supreme Court involvement back to the 2012-13 term. And should the government win, it could even urge the Supreme Court not to review the law at all.

Delay of any length gives the administration time to win more public support for the law, a factor that some lawyers said might subtly influence the nine justices. Some provisions have already taken effect, including a requirement that young adults be allowed to stay on their parents’ insurance plans until they turn 26.

‘Feel of Familiarity’

The administration likely wants “the law to be on the books as long as possible and have people get used to it,” Elwood said. “If it has a feel of familiarity to it, the less likely they are to strike it down.”

Appellate consideration would help the courts home in on the central legal issues, said Drew S. Days III, a professor at Yale Law School and solicitor general under President Bill Clinton. After appeals court consideration, “all the arguments have been played out fully and unwound and elaborated in ways that I think will be helpful to the justices,” Days said.

Cuccinelli said the case involves a “very pure legal argument” and wouldn’t benefit from appeals court rulings. “They’re really just kind of a warm-up for the Supreme Court,” he said.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net; Justin Blum in Washington at jblum4@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.

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