When will the Supreme Court review the individual mandate?

(Cross-posted from Dukes and Wonks.)

While the big U.S. government story of the night is President Obama's new speech on creating jobs, I'd like to highlight another really big story that's probably going to be neglected. The U.S. Court of Appeals for the Fourth Circuit today rejected lawsuits brought by the Commonwealth of Virginia and Liberty University challenging the 2010 Health Care Reform law. Virginia and Liberty University argue that the individual mandate, which requires all U.S. residents to buy health insurance starting in 2014, is unconstitutional. (Liberty University also sued over a related provision that would impose a penalty on employers whose employees have to receive federal subsidies to buy their own insurance.) This is the third ruling in the federal courts of appeals on the law: On June 29, a Sixth Circuit decision upheld the individual mandate, and on August 12, an Eleventh Circuit panel ruled that the individual mandate was unconstitutional. Two decisions for the law, one against it. More cases are pending.

These decisions are significant, for two reasons. First, they set legal precedent for different parts of the country - the Fourth Circuit for the Mid-Atlantic, the Eleventh for part of the Deep South, and the Sixth for Michigan, Ohio, Kentucky, and Tennessee (you can find a circuit map here). Second the Supreme Court is likely to review these cases and decide for the country as a whole whether or not the health care reform law (or parts of it) are constitutional or not. And conflicting lower court decisions make it more likely that the Supreme Court hears these cases sooner rather than later. (The Supreme Court can pick and choose whether it hears most cases, and Rule 10 of the Supreme Court Rules specifically mentions a conflict between appeals court decisions as one of the reasons for which the Court may decide to decide a case.)

Some observers speculate that the Supreme Court will hear and decide one (or all) of the health care appeals during its next term, which will run from October 2011 to late Spring 2012. They point precisely to the conflicting lower court decisions. I am not completely convinced by these predictions, although they may very well turn out to be true.


I have two related reasons: First, the Supreme Court hears cases with lower court conflict because it enables it to review different legal viewpoints that have arisen out of real disputes. If all lower court decisions make similar arguments, it is more difficult for the Supreme Court justices to evaluate the merits of arguments that were none of the lower courts actually used for its decision. As a result, it makes sense for the Court to wait for other similar but undecided cases in the lower courts. Letting such cases "percolate" a bit will provide the justices with more legal material to make a sound decision, to consider the implications of the different legal arguments (and the real-life consequences of different outcomes).

Now, while it looks like the four (the Virginia and Liberty University cases are separate decisions) appeals court cases that have been decided so far represent the different sides of the case, this is not necessarily true. The Eleventh Circuit decision overturns the individual mandate as unconstitutional. But while the decisions in the Sixth and Fourth Circuits uphold the law, it is debatable whether they actually rule that the law is constitutional! This is clearest in the Virginia cases: The appellate court rejected the lawsuits on procedural grounds - it argued that the state of Virginia did not have standing (that is, the right to bring the case), and that Liberty University could not file a suit before the law had actually gone into effect. With respect to the Sixth Circuit, Lyle Denniston at SCOTUSblog makes the argument that the Sixth Circuit panel merely ruled that the law is constitutional on its face (that is, without considering any circumstances in which it was actually applied). According to Denniston, the circuit court indicates that the constitutionality may have to be decided again once the individual mandate is enforced, with possibly different results.

Will the Sixth Circuit's ruling that the law is facially valid be enough for the Supreme Court to find a conflict over constitutionality between the circuit courts? This is where my second argument comes in: Politically, I suspect that enough justices find it appealing to wait until after the next election before they take the case (four out of the nine justices are needed for the Supreme Court to hear a case). The argument that the issue needs more lower court "percolation" may be attractive for some of the more conservative justices. In 2012, President Obama may very well be defeated by a Republican; Congress may very well be willing to modify the individual mandate. If this happens, the Supreme Court could get around deciding the case. Why decide something now that you may not have to decide at all? Furthermore, to overturn the individual mandate, the Supreme Court would have to make an activist decision - it would have to overturn a federal statute, and doing so would require a re-interpretation (or direct rejection) of existing Commerce Clause precedent. More cautious justices may not be willing to do this if not absolutly necessary. While Justice Thomas is likely to insist on principle, even if it means overturning precedent, Justices Kennedy and Chief Justice Roberts (particularly in a Commerce Clause case), for example, may find the wait-and-see approach more palatable. The more liberal justices on the Court may decide to wait as well. If the law gets overturned or modified by Congress, upholding it now is useless; if the five more conservative justices are likely to overturn the law, waiting cannot hurt either. The arguably limited support of the Sixth Circuit decision for the law may be enough of an argument to avoid a decision in the coming term.

Obviously, this is pure speculation. We'll see soon what will happen.