Judicial Tinkering With Healthcare Reform? Likely To Be Marginal


Kevn Sack and Robert Pear, writing this morning for The New York Times, do a nice job of balancing the bellicose rhetoric out of House Speaker John A. Boehner’s mouth, against the realities of a law that is already in place — and cannot be veto-overridden without a two-thirds majority in the Senate (i.e., ain’t. nevah’. gonna’. happen.).

Do go read it all — but I’ll be back later with some additional analysis:

. . . .Lawyers on both sides expect the issue eventually to be decided by the Supreme Court. But the appellate path to that decision could take two years. In the meantime, any district court judge who rules against the law would have to decide whether to block enforcement of one or more of its provisions, potentially creating bureaucratic chaos.

Such a decision would prompt a flurry of appeals, as the Justice Department almost certainly would ask the judge and then the appellate courts to stay, or delay, the injunction pending the outcome of higher court rulings.

Administration officials, as well as some lawyers for the plaintiffs, agree that Judge Hudson seems unlikely, based on his comments from the bench, to enjoin the entire law. The judge volunteered at a hearing last month that his courtroom was “just one brief stop on the way to the Supreme Court.”

If he does not enjoin the law, the immediate impact of a finding against the insurance mandate would be limited because that provision, and others that might fall with it, do not take effect for more than three years. . . .

My personal prediction is that the Supremes will hold the law constitutional, and that — in view of the importance of the question — no lower court will order that it be enjoined. So — net, net — it will be decided long before the 2013 mandate for insurance arrives, under the law as it stands.

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