Friday, November 26, 2010

N.Y. Times reports that the administration is "bracing for setbacks" in ACA litigation

In a story by Kevin Sack and Robert Pear, currently leading on the Times's web site, the paper reports that Obama administration officials are acknowledging that they may soon receive adverse rulings from the district courts. Here are a few critical passages:

"Although administration officials remain confident that it is constitutionally valid to compel people to obtain health insurance, they also acknowledge that Judge Hudson's preliminary opinions and comments could presage the first ruling against the law. 'He's asked a number of questions that express skepticism,' said one administration official who is examining whether a ruling against part of the law would raise questions about whether other provisions would automatically collapse. 'We have been trying to think through that set of questions,' said the official, who insisted on anonymity because he was not authorized to discuss the case freely."

Those paying close attention have known for weeks that this is a real possibility, if not a likelihood. But perhaps people have not been paying close attention, and the decision -- if it declares the minimum coverage requirement unconstitutional -- might significantly increase the uncertainty surrounding the ACA's implementation -- for insurers, consumers, and the government. Rationally, though, it should not matter, as these issues will be resolved by higher courts long before January 1, 2014. The impact of Judge Hudson's (or Judge Vinson's) decision will be purely in the realm of perception.

But perceptions can really matter, of course. A string of lower court decisions invalidating parts of the ACA will, if nothing else, serve to legitimize the states' legal arguments. And this, in turn, would create more political and doctrinal space for the Supreme Court -- if and when the case reaches the justices -- to strike down the ACA.