The Origins of the ACA Litigation

May 4th, 2012

An interesting rendition of the events by Rob Weiner:

Congress passed the health care legislation on March 23, 2010, without a single Republican vote in either House. Republicans immediately promised to repeal it, with one Congressman vowing to “meet the federal government at the state line to keep them from mandating this bill upon us.” Seven minutes after the President signed the bill into law, the Republican Attorney General of Florida, along with 11 other Republican State Attorneys General, plus one Democrat from Louisiana, filed suit. Four of the Republican Attorneys General joined the suit over the objections of their State’s Democratic Governor. Virginia’s Republican Attorney General sued separately.

Bypassing the federal courthouse only six blocks from his office in Tallahassee, the Florida Attorney General sued more than 200 miles away in Pensacola, a jurisdiction that had no connection to any party or any issue in the case. What it had was a bench of three federal district court judges, all conservatives appointed by Republican Presidents. While this forum shopping was allowed under the federal rules, it accentuated the cynical view of our court system and partisan coloration of the case.

As the suits proceeded seven more states joined the Florida suit. Three were represented by their Republican Attorneys General. In the other four, however, the Attorneys General were Democrats, and they refused to sue, so the Republican Governors filed instead.

Seven months after a court-ordered deadline for adding new parties, in January 2011, four more Republican Attorneys General and one Republican Governor sought to bring their states into the litigation. Why the belated interest in the lawsuit? The November 2010 elections. The states’ leadership had changed from Democratic to Republican. Despite the missed deadline, the District Judge granted the motion to add the new parties less than 24 hours after it was filed — without waiting for the federal government’s response. (The same Judge, in an unprecedented assertion of judicial power, later struck down not just the requirement that individuals purchase health insurance, but the entire Affordable Care Act, including provisions such as abstinence education far afield from the insurance mandate.)

Opponents of the Affordable Care Act have been unabashed about the partisan tinge of the challenges. With no apparent sense of irony, a Wall Street Journal editorial in January 2011 urged “Republican governors” to join the lawsuit. Tim Pawlenty, then a Republican candidate for President, echoed that call in the same partisan terms. And in a speech to the conservative Federalist Society, Senate Minority Leader Mitch McConnell described the Republicans’ two pronged strategy: seeking repeal of the health care law in Congress while simultaneously attacking it in the courts.

The partisan origins or purposes of a particular case, of course, do not relieve the Court of the obligation to resolve fundamental constitutional questions. Nor is a legal argument less legitimate just because those advancing it have a political agenda. But where, as here, no precedent establishes the constitutional infirmity of the statute at issue, where the Court is called upon to draw new lines, and where the proponents of the suit are political officials pursuing a result that they and their allies failed to achieve in Congress, the Court must assess carefully whether the legal arguments are merely the lipstick on a political dispute. Justice Frankfurter’s warning some 60 years ago is still apt today: “History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.”

Update: A longer version of this post appears as an ACSBlog post.