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Challenge to Health Care Law Flying Under the Radar

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Image: David WeisenfeldSummer is a sleepy time at the Supreme Court as most of the justices exit the scorching Washington heat.  Justice Stevens was known to keep busy on the tennis court while Justice Thomas often heads around the country in his RV.  As for Justice Kennedy, he regularly teaches abroad and others hit the speaking circuit.

So the quiet period between late June and the first Monday in October, when the annual case argument schedule begins, presents vacation opportunities for those who cover the Court as well.  But while little attention is paid to the Court during its annual “siesta,” appeals can and do get filed during this lull.

Amidst the hoopla over the debt-ceiling crisis, one of those appeals not surprisingly went almost unnoticed.  In fact, it rated no better than a minor story on page A-18 buried in a recent edition of The New York Times.  This appeal, though, will be front-page news if the justices choose to accept the case.  That’s because it marks the first legitimate challenge to the new health care law, the Patient Protection and Affordable Care Act.

On July 27th, a petition was filed challenging a recent Sixth Circuit decision which upheld the constitutionality of the law.  The 2-1 decision was notable because the Cincinnati-based appellate court tends to be conservative, and one of the judges in the majority was Jeffrey Sutton, a one-time law clerk with Justice Scalia.

While there have been a number of federal district court rulings on the health care law in the past year, the Sixth Circuit stands by itself as the lone appellate court to have addressed the issue.   The Supreme Court typically agrees to hear a case only after there has been a circuit split among the appellate courts.  But that does not mean the health care law’s supporters should take comfort that the justices will necessarily sidestep this appeal.

Cases such as Citizens United and the more recent Wal-Mart opinion are clear examples of the Court reaching out to decide hot-button disputes in the absence of a circuit split.  And Chief Justice Roberts’ famed line about “wanting to decide cases on the narrowest grounds possible,” has not always matched his record or that of his colleagues.  That’s a fact of which the appellants are well aware.

So there is reason to believe the Supreme Court could wade into the health-care controversy, and sooner rather than later.  In fact, if the justices decided to grant this challenge, a ruling could come down late next spring as the 2012 presidential campaign season approaches its apex.

If there is one thing I learned from covering the Court for more than a decade, it is that predicting outcomes there is sometimes only slightly easier than taking your chances in Las Vegas or Atlantic City.  Few people are privy to what the justices really feel, and journalists are hardly among them.

But if the justices upon their return to Washington take up the appeal of this Sixth Circuit ruling in the absence of a conflict, chances are they are not doing so to affirm the outcome.  No matter what the result, however, it will have obvious ramifications for what health plans employers offer to their employees going forward.

Supreme Court review of some sort on the health care law eventually seems inevitable.  But if it happens at this still relatively early juncture, another partisan battle is a near certainty.  And things at the nation’s highest court will be quiet no longer.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011.  During that time, he covered every employment law case heard by the Court, and also wrote and co-anchored the company’s employment law newscasts.  In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.


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