The Justice Department's latest appellate brief in the fight over the constitutionality of the Patient Protection and Affordable Care Act is no fur-and-teeth affair. The first half of the 110-page filing, made April Fool's Day at the 11th U.S. Circuit Court of Appeals, reads like a policy paper on health care as much as it does a legal filing. And the second half of the document devotes itself to politely chronicling the number of ways in which the feds believe that U.S. District Judge Roger Vinson got it all wrong in January when he declared the Act unconstitutional in its entirety.
The tone of this document is mellow; the rhetoric far afield from where the ugly political discourse has taken the matter of health care reform (that's probably so, from the White House's perspective, for both legal and political reasons). Anyone who has followed the legal story of the Affordable Care Act, through all its trial court rulings over the past six months, will recognize the major points of contention offered now. But what is striking now is how soft federal lawyers took it with Judge Vinson, the Reagan appointee sitting in senior status in Northern Florida. You can go for pages without so much as a mention of the trial judge who has so forcefully threatened to shut the whole thing down.
From the looks of this brief, the White House and Justice Department must feel that to win these last few crucial court battles they must better educate the federal judiciary about the nature of the nation's health-care problem and the Care Act's professed role in helping solve it. They must have decided, wisely I think, that this constructive approach is more likely to succeed than any destructive attack they could level at Judge Vinson. This theory helps explain why this filing is not your typical appellate brief which draws blood against the trial judge but rather one whose authors are trying to pretend that the trial court's ruling either never occurred or doesn't matter.
In this respect, at least, it feels with this filing as though the Obama Administration is trying to make up for a major tactical mistake in the fight for the future of the Affordable Care Act. Remember all that criticism for the White House's failure to communicate to the American people the case for the health-care law? Well, after this, no one will be able to reasonably blame the Justice Department for failing to communicate its own case to this appeals court. And to the extent that Judge Vinson's narrative didn't fit the script, the feds simply brushed on past it on the way toward making their case-in-chief. (It's easier to do this, of course, when a trial judge strikes down a statute "as a matter of law" without holding a trial, as Judge Vinson did).
Take footnote 6, for example, from the government's brief. "The number without insurance has increased dramatically since 1970, when only 6 percent of Americans under age sixty-five had no coverage" (citation omitted), the feds tell the 11th Circuit. Today, they write, things are much, much worse:
The Nation has faced a serious shortage of affordable health insurance. More than 50 million Americans went without insurance in 2009. Rising premiums have priced many out of the market. Between 1999 and 2010, for example, average premiums for employer-sponsored family coverage increased 138 percent. Many others are excluded from coverage by "medical underwriting," a process by which insurers establish eligibility and premiums based on individual health status or history (citations omitted)
And so on. Like I said, there are a lot of familiar points and legal citations. But there were a couple of interesting points -- including two federal responses to Judge Vinson's ruling and rationale -- that merit mention here.