March 17, 2010

ObamaCare Court Fight Impacts Election & SCOTUS Vacancy

CFJ Executive Director Curt Levey on the Slaughter Solution:

Democrats can’t be happy that Politico’s survey of experts found that the “‘Slaughter solution’ for enacting health care reform without a conventional House vote … would be vulnerable to credible constitutional challenge.” But perhaps worse news for Democrats is that “[n]o lawyer interviewed by Politico thought the constitutionality of the [solution] was an open-and-shut case either way.”

The lack of an open-and-shut case virtually guarantees that the court fight challenging the constitutionality of the Slaughter solution would be protracted, regardless of the ultimate result. The lawsuit will certainly be high-profile, likely garnering nearly as much public attention as the Bush v. Gore court battle. As a result, Democrats’ repeated prediction that the American people will forget the process by which ObamaCare is enacted, no matter how ugly, will become a pipe dream as a high-profile court challenge to that very process drags into and beyond November. In sum, the Slaughter solution destroys Democrats’ hopes of avoiding slaughter at the polls this November.

Supporters of the Slaughter solution correctly point out that its “deem and pass” procedure has been used before. However, because the procedure has never been used before to pass legislation that would otherwise fail, it has never been challenged in court. The resulting lack of binding legal precedent is what makes a battle all the way to the Supreme Court so likely.

Instead of binding precedent, there are only two indirect Supreme Court precedents, both of which weigh against the constitutionality of the Slaughter solution but don’t decisively decide the question. As Politico explains,
“Any challenge likely would be based on two Supreme Court rulings, one in 1983 and the other in 1998, in which the court held that there is only one way to enact a law under the Constitution: it must be passed by both houses of Congress and signed by the president.”
Ironically, “Rep. Louise Slaughter (D-N.Y.), for whom the procedure under consideration by House Democrats is now named, and Speaker Nancy Pelosi (D-Calif.) filed amicus briefs arguing for the result the court reached in the [1998] case,” according to Politico.

The challenge to the constitutionality of the “deem and pass” procedure should not be confused with the inevitable and parallel challenge to the substance of ObamaCare – specifically to the constitutionality of the individual insurance mandate. The latter court fight will only heighten the legal drama that follows enactment of ObamaCare, further crowding out any post-enactment public relations campaign Democrats have planned.

The twin constitutional challenges to the legislation will also complicate the confirmation process for the President’s choice to replace Supreme Court Justice John Paul Stevens, who is very likely to retire this spring. The focus of the media and public will be on how the nominee, if confirmed, would rule on the twin lawsuits. The nominee will likely decline to answer repeated questions about the constitutionality of ObamaCare during the confirmation hearing, but that will only heighten the speculation.

Finally, having lived through Senate Democrats’ attempts to block Bush judicial nominees they opposed, I can’t help but wonder what their reaction would have been if the GOP-controlled Senate had tried to “deem” a controversial nominee confirmed by a vote on a second, less controversial nominee.


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