Will the Supreme Court decide the 2012 presidential election?

A second court has ruled the Patient Protection and Affordable Care Act (PPACA), better known as Obamacare, violates the Constitution and its limits on congressional power. Yesterday, federal Judge Roger Vinson in Florida joined federal Judge Henry Hudson in Virginia in ruling that the bill’s mandate requiring individuals to purchase health insurance went beyond the Commerce Clause and constituted unprecedented power over individuals predicated on nothing more than being alive. Judge Vinson went even further than Judge Hudson, finding that the entire bill violated the Constitution, and he invalidated it entirely.

While these two rulings have cheered opponents of the bill, the issue is far from decided. Two earlier rulings by judges upheld the constitutionality of PPACA. Both involved private-sector plaintiffs rather than states, but standing wasn't an issue in either case; both federal judges ruled on the merits of the complaints and found that Congress acted within its authority under the Commerce Clause. No appellate court has adjudicated an Obamacare lawsuit, which means that none of these rulings have the force of precedent.

No one doubts that the Supreme Court will eventually have to settle the questions of the individual mandate and severability. The only question is when they will choose to consider it — and that is a question fraught with political consequences, for both President Barack Obama and those Democrats still in Congress.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

The Supreme Court rarely takes cases directly from the district courts, usually opting to do so only when delay would create irreversible damage or in cases of "imperative public importance" and "extraordinary constitutional moment." The state of Virginia announced its intent to pursue such an expedited appeal directly to the Supreme Court, and with the 2-2 split in district courts in various appellate jurisdictions, the court may be inclined to consolidate and expedite the cases for review.

An adverse ruling by the Supreme Court before the 2012 election would be an unequivocal disaster for Obama.

They would most likely approach what has obviously become an "extraordinary constitutional moment" on those narrow grounds where their intervention is not only inevitable but necessary. That is certainly true of the mandate, which tests the limits of congressional power on the individual, and perhaps also on the severability of the mandate from the rest of the PPACA. A relatively quick ruling striking down the mandate would make other planned lawsuits moot, while a quick ruling in favor would allow lower courts to consider other challenges to the PPACA's provisions with more certainty. Such an expedited review could shave a year or more off of the uncertainty created by the conflicting district court decisions as they pass through their appellate circuits to the inevitable Supreme Court review.

An immediate grant of certiorari could mean a decision by this summer, while the trek through the appellate courts could postpone any final consideration of PPACA until 2013 or 2014, when the law comes fully into effect. Even if the Supreme Court waited until its next session to accept an expedited case, the decision would still come before the 2012 election. A Supreme Court ruling that supports the mandate still leaves President Obama and his Democratic allies with an unpopular bill under political siege in the Republican-controlled House, no worse or better off than before a final court ruling. Such a ruling might even provide more motivation to the opposition to gain control of the Senate and White House to reverse the PPACA entirely through legislative action.

An adverse ruling by the Supreme Court before the 2012 election would be an unequivocal disaster, however. President Obama and his fellow Democrats spent almost half of the 111th congressional session fiddling on health care while the economy burned, which destroyed their credibility in the midterm elections last fall. They insisted that their work would pass constitutional muster even as the mandate fueled the rise of the Tea Party and came to embody all of the arrogance and elitism of big government, nanny state. A ruling that overturns even just the mandate means that they tossed away their House majority and all of their political momentum for nothing.

What’s more, it will increase the prestige and the credibility of those who fought the passage of the PPACA and who later vowed to repeal it entirely and start reform over from scratch. And that could come just as President Obama runs for re-election and Democrats desperately try to preserve their Senate majority as they defend 13 more seats than Republicans. Not only would their work be discredited, so would their entire approach to governance.

The question of severability in the legal sense will play an important part of the appeals process, up to the Supreme Court sooner or later. The bigger question will be whether President Obama and his party will have any political severability from Obamacare if the Supreme Court overturns it on an expedited review. Voters will give the final judgment on that point, but given Democrats' lack of accomplishment over the past few years, don't bet on it.