By Alexander Bolton - 02/02/11 11:00 AM EST
Democratic and Republican lawmakers believe the Supreme Court will ultimately decide the fate of President Obama’s healthcare law, and some of them are already exerting pressure on the justices.
The high-stakes lobbying comes as the Senate is scheduled to vote on a healthcare repeal bill Wednesday. That effort is expected to fall short, and the spotlight of the intense debate is expected to pivot back to the judicial branch.
“I think there are some very good Democrats there on the court, or I should say more liberal people on the court, who have to recognize these constitutional issues,” Hatch added.
Sen. Tom Harkin (D-Iowa), chairman of the Health, Education, Labor and Pensions Committee, said Tuesday, “[Justice Antonin] Scalia, interestingly enough, has argued for years that barring any overly gross action by Congress, the court should let the Congress make its laws and if people don’t like them, let them decide at the ballot box.
“So it will be interesting to see how Scalia goes about this.”
The U.S. Court of Appeals for the 4th Circuit is expected in May to hear oral arguments on a challenge to the law, which requires people to buy health insurance or face penalties.
Depending on how fast other circuit courts act, the case could reach the Supreme Court at the end of 2011 or the beginning of 2012, according to legal experts. That timetable would coincide with the presidential primary season, which officially begins with the Iowa caucuses in February of next year.
Republicans want the case to reach the Supreme Court swiftly. The Obama administration, however, is in no rush for it to reach the nine justices who sit on the other side of First Street from the Capitol.
“Quite frankly, the longer the healthcare bill is in existence and the more people find out the benefits they have,” the more popular the law will become, Harkin said. “The court may want to take a look at that and think about what the public reaction will be.”
House Democratic leaders have also tried to shape public expectations ahead of Supreme Court consideration of the controversial law.
“We strongly believe that health reform is constitutional, and is consistent with longstanding precedents of the Supreme Court,” House Democratic Leader Nancy Pelosi (Calif.) said after Roger Vinson, a federal district court judge in Florida, struck down the entire law in a ruling Monday.
Rep. Henry Waxman (D-Calif.), who took a lead role in crafting the law last Congress as chairman of the House Energy and Commerce Committee, also predicted the Supreme Court would act to uphold what he called a “clear legal consensus.”
“I have always expected that there was a chance that one or two lower-court judges would oppose the clear legal consensus that the law is constitutional,” Waxman said in a statement. “But I firmly believe that the law is constitutional and ultimately that is what the Supreme Court will decide.”
The comments by Pelosi, Waxman, Harkin and Hatch could be seen as a nudge to Justice Anthony Kennedy, a swing vote on the high court.
Legal consensus over the healthcare law has changed in the wake of Vinson’s decision and a prior ruling by a federal court in Virginia that found the individual mandate unconstitutional.
Previously, many constitutional scholars expected the Supreme Court would vote by a comfortable margin to uphold the law, but now the consensus is it will be a 5-4 decision.
“There’s been a big change in the conventional wisdom,” said Randy Barnett, the Carmack Waterhouse professor of legal theory at the Georgetown University Law Center. “The temperature of law professors has changed considerably.”
Barnett described Vinson’s decision as “extremely deep in its discussion of principles and constitutional doctrine.”
Democratic lawmakers, however, argue that federal district courts have ruled as expected, noting that two Democratic-appointed judges have upheld the law while two Republican appointees have ruled against it.
“We’re now two and two,” said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.). “Obviously, it’s going to the Supreme Court.”
Leahy said he believes the law is constitutional and a decision striking it down would be surprising, just as the Supreme Court’s decision to allow corporations to spend unlimited amounts to influence elections, which it made last year in Citizens United v. FEC, was.
Liberal legal experts and bloggers have already begun warning of the politicization of the courts and said a Supreme Court decision against the law would be a reprise of the Bush v. Gore decision that ultimately ended the 2000 presidential contest.
“That decision, Bush v. Gore, will go down in history as taking its place alongside the Dred Scott decision as being an outlier,” said Harkin, in reference to the 1857 ruling that held slaves were not protected by the Constitution.
Charles Fried, who served as solicitor general of the United States under President Reagan and teaches at Harvard Law School, said, “In an odd way, this is more political than Bush v. Gore.
“This has become a slogan issue, in a way Bush v. Gore wasn’t,” Fried said of the legal challenge against the healthcare reform law. “It would be very upsetting if it was decided along a kind of a party line.”