Timing of the Health Care Litigation
Over on Brad Joondeph’s indispensable blog about the litigation over the individual mandate, he has posted a thoughtful analysis arguing that the Supreme Court will decide the issue next Term. I’m not sure whether that is correct, but his prediction raises the question of what the best strategy is for each side in this debate. The appellate panels that will hear cases this summer will have a lot of discretion in determining when Supreme Court review will happen. A panel could take a lot of time to issue its opinion or push it out rapidly. A dissenting member of a panel could take a long time to issue a dissent or write that quickly. Then there’s the potential for en banc review, not to mention a defensive denial of cert by some of the Justices. (After all, nothing says the Court will take the first case presented to them.)
I think the answer turns on whether you think President Obama will be reelected.
If your answer is yes and you want the mandate to be struck down, then I think you would want the Justices to decide this before the election. That’s because a reelection might well convince some Justices that the country supports the constitutional understanding behind the mandate. The opposite would be true if you want the mandate upheld.
If your answer is no and you want the mandate struck down, then I would think you’d want the Court to wait until 2013 because then some Justices might see the election as a repudiation of health care. The opposite would be true if you want the mandate upheld.
Of course, what I just said assumes that Obama’s reelection is an independent event. What if you think that the Court’s opinion would influence the election? (By riling up the Tea Party or angering liberals, for example) Then you may want to push ahead or go slow depending how you think the Court will decide and what effect that would have on public opinion, which is obviously a much more complicated assessment.
One thing is certain. At least one of the judges on one of these appellate panels will be thinking about these questions over the next few months.