Tuesday, September 20, 2011

How not to be Cynical about the Individual Mandate in Court?

There is a new opinion on the constitutionality of the health care law, by Judge Christopher Connor of the Middle District of Pennsylvania, striking down the mandate.  Unsurprisingly, all you need to know about the opinion is encapsulated by the fact that Judge Connor was nominated to the bench by President George W. Bush.  

It is getting harder and harder not to be cynical about this. Only two out of the twelve judges who have ruled on this question have not ruled in line with the ideology of their nominating president.  Both are appellate judges, one in the Sixth Circuit -- Judge Jeffrey Sutton, nominated by George W. Bush -- and one in the 11th Circuit -- Judge Frank Hull, nominated by Bill Clinton. (Incidentally, the three judges on the Fourth Circuit who dismissed the challenges were, unsurprisingly, nominated by Presidents Obama and Clinton).

Moving forward, the interesting question lies in explaining these two votes.  Could they have voted as they did in order to force a circuit split and thus making review by the Supreme Court more likely? 

This question leads directly to a second, more interesting question: while the commentary assumes that the existing circuit split ensures that the Court will take up this question in the near future, will four justices choose to thrust the Court into this debate on an election year?

I am not so sure.  And yet, whether four justices so choose will tell us a great deal about the Court and the role that it sees for itself in our constitutional system.

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