Health care and the Line Item Veto
The Fourth Circuit Court of Appeals heard two cases dealing with the ACA or Affordable Care Act (a.k.a. Obamacare). Most of the discussion thus far in the courts and before Congress centers on issues related to the individual mandate and its relation to the Commerce Clause. In the discussion, the challenges to the ACA focus on questioning whether the Act is constitution because it tests the limits of congressional power and the restrictions placed on the breadth of that clause through Lopez and Morrison.
“The appeals court relied on the Anti-Injunction Act of 1793. Since the individual mandate has not yet been implemented, the Fourth Circuit panel noted that the Act could not be challenged. In the earlier case of Raines, the Supreme Court held that members of Congress did not have standing to challenge the line item veto, even though the legislation was written to confer standing on legislators. It was not until Pres. Clinton actually utilized the veto that the Court addressed the issue in Clinton v. New York.
Here, a panel of three federal judges appointed by Democratic presidents (one appointed by Clinton and two by Obama) have used the flexible doctrine of ripeness, rather than standing to dismiss a challenge to legislation. This new twist could provide a change in the framing of the case. Under this change of framing, the issue is not commerce or congressional power, it’s justiciability. This change in the frame is not a clear victory for the Obama Administration, but it could work to the Administration’s advantage just the same. The change in frame provided by these three Democratic appointees pushes the issue off the table for three years by allowing the ACA to continue in its current form. The Administration has argued that once the ACA is put into practice and folks see what it does for them, the opposition will wither away.
However, this could be more than a simple stalling tactic. This could be evidence of strategic action by the Court of Appeals. The use of the 1793 law and its relationship to justiciability is similar to the Burger Court’s use of justiciability to limit the ability of the Supreme Court to “legislate from the bench”. Given the clear activism of the Rehnquist and Roberts Courts on issues of congressional power, perhaps it is not surprising to see a Democratic panel using the same tactics to forestall further erosion of congressional power and avert rejection of a key Obama legislative victory. And this type of action, once again, reveals that judges are sometimes not that different from other political actors or elected representatives. As Richard Fenno showed us so clearly, the frame and the sequence of decisions in Congress can impact the decisions of later decision-makers, and this applies whether it is a sequence of court decisions within the hierarchy of the judiciary or a vote on the a piece of legislation.
Addendum: Today (September 22, 2011 Linda Greenhouse published an op-ed piece suggesting that the Fourth Circuit’s opinion will NOT change the pathway of the case nor influence the Supreme Court. However, her piece does give an interesting take on the federalism issue Virginia is trying to create to ensure standing. See http://opinionator.blogs.nytimes.com/2011/09/21/breaking-news-the-civil-war-is-over/
Addendum #2: On September 23rd, the Court of Appeal for the District of Columbia heard a challenge to the ACA. During the oral argument, Judge Brett Kavanaugh as reported by ABCnews “…asked a long series of questions on whether a federal law, the Anti-Injunction Act, prevented challenges to the mandate from coming to court until the penalty actually went into effect in 2014. The questions were significant because another appeals court in Virginia dismissed a challenge to the law citing the Anti-Injunction Act.” Kavanaugh is a G.W. Bush appointee. (http://abcnews.go.com/blogs/politics/2011/09/appeals-court-judges-skeptical-of-obama-administrations-defense-of-health-care-law/ accessed on September 26, 2011.)
Addendum #3: The Supreme Court on Monday November 14th granted certiorari to some of the challenges to the Healthcare law. The Court will hear over 5 hours of argument; 90 minutes of that time will be spent discussing the justiciability of the suit given the Anti-Injunction Act. The Court will also address whether states have standing to bring suit at all.
 See Floyd, C. Douglas, “The Justiciability Decisions of the Burger Court,” 60 Notre Dame Law Review 862, 1985.
 Fenno, Richard. 1986. “Observation, Context, and Sequence.” American Political Science Review 80.