Last week we talked about how the Supreme Court decided not to rule on the legal challenges to health reform yet, but instead will let the cases work their way through the normal federal appeals process. This week, the first of the appellate hearings got underway in Virginia in the Fourth Circuit Court of Appeals. The court is hearing two cases in which lower courts reached opposite conclusions on the constitutionality of the individual mandate.
There are 14 judges on the Fourth Circuit Court– 7 appointed by Republican presidents, 7 by Democrats– but only three will decide the health reform case. Those three were randomly selected by a computer, which chose three Democrats. So far every judge appointed by a Democrat has upheld the new law’s individual mandate, while every Republican has ruled it unconstitutional, demonstrating why judicial appointments matter.
We’ve talked about the court challenges to health reform before (here and here). Before judges started ruling on the individual mandate, most legal scholars, even conservative ones, assumed that courts would uphold it. George Washington University law professor Orin Kerr, a former Kennedy clerk, said that “there is a less than 1 percent chance that the courts will invalidate the individual mandate.” It appears that both sides underestimated just how partisan judges would be on such a polarizing issue like health reform.
Meanwhile, for a great explanation of the legal issues surrounding reform check out Northwestern University law professor Andrew Koppelman’s essay “Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform” in The Yale Law Journal.