Obama likely to try stalling health care appeal, professor says

John O'Brien Aug. 15, 2011, 1:00pm


CHICAGO (Legal Newsline) - A Northwestern University law professor says President Barack Obama's plan in the wake of an adverse ruling regarding his health care reform will likely be to stall his appeal until after 2012's election.

Stephen Presser, a professor of legal history, says Obama should plan his appeal in a way that will allow his 2012 campaign to be finished by the time the U.S. Supreme Court rules on the constitutionality of the health care law he signed in March 2010. An adverse ruling by the nation's highest court could severely hurt Obama's re-election chances, Presser said.

"This may well be an agonizing decision," Presser said. "They will probably want to make a political calculation. It's going to be a good idea to push this past the election. This being a pretty political administration, that's probably what they'll decide.

"If I was in his shoes, I'd want a decision sooner rather than later so I could claim to be vindicated or run against (the decision). Remember, he ran against the Citizens United decision when that came down. I would expect him to do the same if this is decided before Election Day."

Presser said the U.S. Court of Appeals for the 11th Circuit wisely ruled Friday that the federal government does not have unlimited power under the Commerce Clause. A three-judge panel ruled that a mandate that requires individuals who don't purchase health insurance to pay an annual $695 penalty is unconstitutional.

The Obama administration can ask for a rehearing before the full roster of 11th Circuit judges, a move that could keep the U.S. Supreme Court from deciding the case before November 2012.

"If the Supreme Court rules against it, it's going to be hard for the American people not to understand that maybe this guy has gone too far," Presser said. "All things considered, he'll probably try to delay until after the election."

As lawyer Ted Frank wrote on the blog Point of Law, the 26 states that are part of the lawsuit challenging health care reform can ruin that plan. The 11th Circuit ruled against the states' argument that the entire legislation should be voided because the mandate was an essential part of it.

Frank says that creates a situation where the states can file a cross-appeal straight to the U.S. Supreme Court. Presser said he was surprised the 11th Circuit reached that decision.

"The curious part of the decision is that they did not affirm Judge (Roger) Vinson's conclusion that the individual mandate wasn't severable. I would've expected them to do that," Presser said.

Vinson ruled earlier this year, that the mandate is essential to the functionality of the entire health care reform package. In deciding the mandate was unconstitutional, he voided the entire legislation.

"If Congress intends to implement health care reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not," Vinson wrote in January.

Presser says the mandate is the "linchpin" of the package - "If it collapses, then the system collapses," he said.

The 11th Circuit joins the Sixth Circuit in ruling on the issue. The Sixth Circuit ruled the law was constitutional.

"Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce," Judge Jeffrey Sutton added. "In choosing how to regulate this group, Congress also did not exceed its power. The basic policy idea, for better or worse (and courts must assume better), is to compel individuals with the requisite income to pay now rather than later for health care.

"Call this mandate what you will - an affront to individual autonomy or an imperative of national health care - it meets the requirement of regulating activities that substantially affect interstate income."

Presser said he "wasn't impressed" with the Sixth Circuit's decision.

"What we're talking about is two different ways of looking at the Constitution," he said. "One way is that the 10th Amendment is a tremendously important part of the Constitution. The contrary view, which you see in the (Obama) administration and Democrats in Congress, is that's not the way it is anymore."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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