The United States Supreme Court did the obvious when without comment it declined to review the Commerce Clause challenges to the individual mandate of the ill-named Patient Protection and Affordable Care Act, or ObamaCare.
It is a rare thing indeed for the Supreme Court on its own motion to jump over the Circuit Courts and order its own direct review of District Court decisions that have struck down major pieces of social legislation. The decisions themselves have no binding effect on anything so long as the matter is on appeal. With the federal district courts divided, it makes sense for the Supreme Court to take a wait-and-see posture with respect to these constitutional challenges. A consensus could emerge at the appellate level that makes its task easier. Or the divisions can persist, at which point the Court has the ability to draw from a greater range of arguments that are now available.
This decision, however, comes with certain real costs. The implementation of this massive statute does not take place at one time or in one place. There are parts of the statute that go into effect right now, and others that will be phased in over time. The longer the indecision about the statute, the more difficult it is for both public officials and private parties to plan for the future.
Getting a clean constitutional decision soon will then set the stage for serious deliberation as to what next steps should be taken and why. Remember that this ObamaCare is not self-executing and its future implementation depends on appropriation decisions that usually begin, as do all tax measures, in the House of Representatives, which is now securely in Republican hands.
None of this is likely to move the Supreme Court, but it should nudge the appeals courts to put this issue on their front burner, so that the matter can make it up to the Supreme Court. When it does get there, the biggest issue might well be whether Justice Elena Kagan recuses herself from the deliberations given her service as Solicitor General before he confirmation last June.
The claim here is far from frivolous. It is not as though people thought that no constitutional challenge would be lodged against the statute. And it seems highly unlikely that the chief appellate lawyer of the United States would not weigh in on a statute that is likely to make it to the Supreme Court. Were this an ordinary case, I have no doubt that Kagan would bow out. But with the stakes so high, and the political terrain so uncertain, one can only wonder.
For the moment, however, it would be unwise to make either predictions on how the process should come out or demands on what Justice Kagan should do. Today’s decision is a small stop on a large journey. More eventful incidents are surely in store.