When Americans join in a hearty fight over a major public policy, they usually prove that Alexis de Toqueville was right. The shrewd French observer of life in America wrote in 1831: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” With the sweeping new federal law on health care, that happened sooner: within moments after President Obama signed the measure into law, its constitutionality was challenged in federal courts in Michigan, Virginia and Florida.
Even before those lawsuits were filed, a rising stack of scholarly papers explored the constitutional challenges that might be pursued and, as expected, they disagreed not only on what the questions should be, but how they could come out.
With the new lawsuits actually underway, what will unfold in the courthouses will be in stark contrast to the messy process in Congress in getting “Obamacare” enacted. Judicial review will be orderly, well-mannered, even sometimes boring, and it may take a good deal longer than the 14 months it took the Obama Administration and congressional Democrats (they had no Republican help) to get the law onto the statute books. And, if Americans found it baffling to deal with such arcana in Congress as “reconciliation,” “self-executing rule,” and “deem and pass,” they should not be surprised if they now confront in the courts such unfamiliar words and phrases as “standing,” “ripeness,” “case or controversy,” “Ashwander doctrine” (or, a variation of that, “constitutional avoidance”), “deference,” “rational basis,” “federalism,” “separation of powers,” and “severability.”
Ceci has insisted, however, that he will not buy private health insurance and he does not want to be forced by the federal government to do so.
And none of this process in the courts will go to a final decision if, in the meantime, the political equation in America changes, the Republicans take control of Congress, and succeed in repealing the individual mandate. There is, thus, much more to this story than the filing of three lawsuits in federal court in March 2010.