Should The Administration Expedite The Health Care Lawsuit To The Supreme Court?

Following Judge Henry Hudson’s ruling striking down the individual mandate provision in the health care law, Republicans began clamoring for an expedited review of the law before the Supreme Court. “I call on President Obama and Attorney General Holder to join Attorney General Cuccinelli in requesting that this case be sent directly to the U.S. Supreme Court,” Re. Eric Cantor (R-VA) said in a statement immediately following the release of the decision. Virginia Attorney General Ken Cuccinelli — who filed the suit — made a similar plea at his own press conference yesterday and this morning on Morning Joe, Virginia Governor Bob McDonnell announced that he had written a letter to all the governors in the country asking them to support an expedited process:

MCDONNELL: I’ve sent a letter to every governor in the country asking them — I sent it last week — asking them, regardless of what they thought about the health care law itself, to join me in asking the Supreme Court to take the case directly. In other words, have us bypass the circuit court of appeal, go directly to the Supreme Court. I hope the Justice Department will be open to doing that because we need to get certainty and finality in this suit and know exactly what the law is going to be. Don’t waste another year or two years in litigation, let’s get to the Supreme Court where everyone knows it’s going to be. So I hope we can get that done and get certainty for the businesses and the health care community.

There is nothing terribly wrong with this request, since it probably makes more sense to resolve this question sooner rather than later. Most constitutional experts believe that Hudson’s interpretation will not be upheld, but even if it is, I would argue that from an implementation perspective, it makes more sense to find that we’ll have to make the law work without a mandate now than after the provision goes into effect. And, since a favorable ruling isn’t a sure thing, Democrats that want to meet the goal of covering almost everyone by 2019 better start developing alternatives to the individual mandate today. That’s what Henry Aaron argues at the bottom of this Bloomberg article, “The only way this works is if they offer an adequate subsidy and it’s debatable whether the law currently does that,” he said. “It would be prudent for the White House to start these discussions now.”

Of course, all of this is very unlikely to happen. Politico’s Jennifer Haberkorn and Sarah Kliff point out that the Supreme Court “rarely uses the option, and the Obama administration has already indicated it would not support such a move.” “In a background briefing with reporters last week, Obama administration officials said they do not plan to support an expedited review of the case and called the move ‘premature.'” Former Reagan Solicitor General Charles Fried described the move as unusual saying, “given that the health care mandate doesn’t kick in until 2014, the argument for expediting it is not really strong. It’s quite an unusual thing to do.”

In April, Fried appeared on Fox News to condemn the lawsuits and was so certain that the Supreme Court would preserve the health law, he promised to eat an Australian leather hat on television if the decision is overturned. Now, isn’t that reason on enough to speed up the process?