Wednesday, April 16, 2014
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Politics Drives the Rush for Supreme Court Review of Health Reform

The legal challenges to health reform have now raised an interesting new question: Should the Supreme Court be careful and deliberative - or quick and hurried - in making its interpretations?

Politics Drives the Rush for Supreme Court Review of Health Reform

The Constitution’s commerce clause is 224 years old. It gives Congress its most important source of authority to regulate business. Over the years, the Supreme Court has been called upon to interpret it many times.

The legal challenges to health reform have now raised an interesting new issue. Not the one you’ve been hearing about concerning the scope of the commerce clause itself. The new question is whether the Court should be careful and deliberative - or quick and hurried - in making its interpretations.

The scope of the commerce clause is the central issue in the health reform challenges. Opponents of the law claim that Congress exceeded its authority under the clause in requiring that everyone have health insurance. When it ultimately rules on that claim, the Supreme Court may plow new ground, whatever it decides.

Usually, the Court considers such weighty constitutional issues only after courts below have fully considered them. This includes a trial in a district court, an initial review by a court of appeals, and sometimes another review by a larger appellate panel. Along the way, issues arise and take shape that can affect the eventual outcome.

But health reform opponents keep trying to rush the process.

The latest attempt is a request filed this week for Supreme Court review of their most recent judicial loss. In late June, a three-judge federal appeals panel found the law to be fully constitutional. Reform opponents wasted no time in petitioning for review. Losers at this stage often move at a more deliberative pace or seek a re-hearing before all judges on the appeals court before taking this step. (The full petition is here.)

This is not the first time that health reform’s challengers have tried to rush their way to the high court. Last April, Virginia Attorney General Ken Cuccinelli asked the Court to take the case directly from the trial court, without any intermediate appellate review. That is a highly unusual step, and the Court rejected the request.

The efforts to rush the case to the Supreme Court show how political the legal challenges to health reform really are. The law won’t become fully effective until 2014. There is no pressing need for a resolution before then. In fact, courts often refuse to even consider challenges to new laws until after they have taken effect. Before then, questions surrounding their impact may be largely conjectural.

The real goal seems to be to get a Supreme Court ruling before the next election. A loss could embarrass Obama and the Democrats. This would turn health reform, once again, into a major election issue.

Constitutional pronouncements by the Supreme Court can have a profound impact for years to come. They should reflect as full a review as possible. A decision on health reform that is rushed because of politics would do a grave disservice not only to a key area of federal policy but to the Constitution, as well.


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About this blog

Check Up covers major health events in our region and offers everything from personal health advice to an expert look at health reform. Read about some of our bloggers here.

For Inquirer.com. Portions of this blog may also be found in the Inquirer's Sunday Health Section

Michael Cohen id the president of the Institute for Safe Medication Practices in Horsham.

Daniel Hoffman is the president of Pharmaceutical Business Research Associates (PBRA) in Glenmoore, Pennsylvania, a healthcare research and consulting company specializing in key account positioning and messaging.

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