Halfway Home on the Health Care Lawsuits

It's been exactly one year since the passage of the Patient Protection and Affordable Care Act and what a year it has been for the Commerce Clause, the Tenth Amendment, and camelia-lovin' judges everywhere! The past 365 days have witnessed crowded trial court hearings, momentous federal rulings, timely notices of appeal, and absolutely no legal consensus whatsoever on whether the Act is constitutional. 

We aren't likely to reach such a consensus anytime soon. But we are a little more than  halfway through the journey toward legal certainty over the most contentious piece of legislation of its generation. The answer we all are waiting for likely will come sometime next year, next spring I reckon, when the United States Supreme Court takes up the matter. The Justices will have to address the issue of the validity of the law's "individual mandate." They will have to evaluate the applicability of the Court's precedent in Wickard v. Fillburn. And most of all they will have to tell us all the difference (legal, metaphysical, or otherwise) between "action" and inaction" when it comes to opting into (or out of) health insurance coverage.

One year after President Obama signed the measure many now derisively call Obamacare, there is quite a clamor, mostly by those who oppose the law, to expedite the legal process. To get the result sooner rather than later. And the nation as a whole, weaned on snap judgments and quick resolutions, seems impatient to know how the story will end. But the law rarely rushes for anyone. And perhaps you'll find it comforting to know on this anniversary that our justice system is digesting the epic law at about the same rate it once upon a time digested other, similar pieces of memorable legislation.

Naturally enough, the Affordable Care Act has been compared with the federal law that gave us Medicare. That law actually was an amendment to the Social Security Act itself. President Lyndon B. Johnson signed it into law on July 30, 1965, but it did not generate a constitutional showdown of the sort looming over the Care Act. Nor did the Civil Rights Act of 1964, which President Johnson signed into law on July 2, 1964, or the Voting Rights Act of 1965, which Johnson signed into law on August 6th of that year. There has been a mountain of litigation over these measures, don't get me wrong. But the comparison simply doesn't work.

We have to go further back, to the Great Depression, for the model. It took the Supreme Court 710 days to strike down the National Industrial Recovery Act, the cornerstone of President Franklin D. Roosevelt's "New Deal." The Recovery Act was signed into law by President Roosevelt on June 16, 1933. The Court unanimously rejected it on May 27, 1935. It took the Court 648 days to uphold the constitutionality of the Social Security Act, the fabled "switch in time saving nine" having occurred in the interim. The Social Security measure was signed into law by President Roosevelt on August 14, 1935. The Court rendered its verdict on it in a series of three cases published on May 24, 1937.

That averages out to 679 days from executive branch signature to judicial branch evaluation. And that would mean we all ought to have our cellphone batteries charged for January 11, 2012, which (by my count anyway) marks 679 days from March 23, 2010. I kid. It'll take a little longer than that for Supreme Court resolution this time. We'll be lucky if the Court has scheduled oral argument for the Care Act cases by next January. We still have to get all the briefing done at the lower federal appeals court levels (that just started earlier this month). Then we have to have oral argument in those cases. Then we have to wait for the rulings. And then the losing side has to appeal the matter to the justices.

And then the justices have to formally accept the case, and schedule the briefs, and hear argument, and give themselves time to rule. Are you ready for a dispositive ruling on the federal health-care law just in time for the heart of the presidential primary season? Cue the chattering class. Book the air time. Dust off the cloistered law professors and other "experts." One year from today we'll either know, or be very close to knowing, whether the Act stands or falls. To those of you itching for a ruling, that's a long time to wait. On the other hand, the winning side will surely feel it was all worth the wait.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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