Bloomberg News

Supreme Court Cannot Dispel Health-Care Doubts Too Quickly: View

November 23, 2011

Nov. 15 (Bloomberg) -- The Supreme Court said yesterday that it will hear arguments on the constitutionality of the Obama administration’s health-care reform law in the spring. The justices’ eagerly awaited ruling is expected in late June, nicely timed for the presidential election season.

This speedy schedule (by constitutional-law standards) is good news -- or ought to be. Let’s not dwell on the fact that the law was drafted in such a way as to require this scrutiny in the first place. It was, and it does. Two appeals courts have now backed the law, one has struck it down, and one has said it’s too early to rule. The sooner the court dispels the legal uncertainty, the better.

Unfortunately, next year’s ruling may fail to do that. The court has said it will hear arguments on whether taking the case was in and of itself premature.

It all comes down to a reading of tax law -- in this case, the Anti-Injunction Act, which says that taxpayers who want to challenge the legality of a tax must pay it first and sue for a refund later. Only then can the courts consider whether the tax conforms to the law. If the Supreme Court finds that the penalty for defying the Affordable Care Act’s individual mandate is akin to a tax, the justices could defer the crucial constitutional question until 2015, when the first penalties are due to be applied.

This bleak possibility cannot be discounted. The 4th U.S. Circuit Court of Appeals ruled in September that it is too soon to challenge the penalty’s legality. Last week the District of Columbia Circuit ruled that the health-care law passes constitutional muster; however, a dissent by Judge Brett Kavanaugh reiterated the case for shelving the issue on Anti- Injunction Act grounds.

Swing Vote

Some legal scholars believe that Justice Anthony Kennedy, a crucial swing vote, might find the argument for delay both appealing and convenient. It would postpone a difficult and contentious decision -- long enough, perhaps, to render the whole question moot, because Congress might change the law before it comes into full effect in 2014.

As Noah Feldman, a professor of law at Harvard, noted in a column for Bloomberg View yesterday, Kavanaugh worked for Kennedy; his dissent could serve as a brief for his old boss.

Further delay and uncertainty might be convenient for the court, but it would hardly serve the public interest. If the law is constitutionally broken, it needs to be mended, and promptly. Planning and putting it in place cannot proceed smoothly until this is resolved.

The Affordable Care Act is a monstrously complex law. Uncertainty over its introduction is weighing on the economy. Those costs may be hard to measure, but they are real. The court shouldn’t add to them needlessly, least of all on the “prudential” grounds (as the dissent put it) that the problem might go away if the court ignores it long enough. It would be a mistake to give the illusion of settling an important issue while really only muddying the waters. Clarity on this matter is already badly overdue.

--Editors: Clive Crook, Paula Dwyer

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To contact the Bloomberg View editorial board: view@bloomberg.net.


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