KHI News Service

What a Mess!

The case for expedited Supreme Court review of the Affordable Care Act

By | May 25, 2011

The Patient Protection Affordable Care Act (ACA) is costing hundreds of millions of dollars and no one knows if the law will be deemed unconstitutional and, if it is, then those millions are being spent for nothing.

Political issues aside, the courts have helped to create a mess. We all know that eventually the constitutionality of the ACA will be decided by the Supreme Court of the United States.

It didn’t take long for the Supreme Court to get involved in politics in 2000 when it yanked the case of Bush v. Gore out of a series of lawsuits and made a decision that stated that a system devised by the Florida Supreme Court to recount the votes cast in the 2000 U.S. presidential election was unconstitutional. Who can doubt that the Supreme Court can do anything it wants to do in taking jurisdiction of a case that has not yet exhausted its trail through the state or federal courts.

A case may be taken by the Supreme Court before judgment upon a showing that the case is of such public importance as to justify deviation from normal appellate practice as to require immediate determination by the Court. If there ever was a case of public importance that would justify deviation from normal appellate practice, it is the Patient Protection Affordable Care Act.

Four federal judges have ruled on the ACA thus far. Two have said the ACA is constitutional and two have said it is unconstitutional. Aside from the political wrangling that is going on over the ACA hundreds of thousands of Americans are in limbo waiting for a final decision. State governments don’t know what to do in regard to implementation of the ACA which will come to the fore in 2014.

At one time the Supreme Court decided approximately 150 cases per year. They are now averaging fewer than 100 annually. Surely they have time to take the case from the lower courts and put the issue at rest. The Court has the opportunity to put the issue at rest and allow the politicians and the public to go on with other important issues. What a mess!!

(Robert T. Stephan is a Republican who served as Kansas attorney general from 1979 to 1995. He currently chairs a working group that is helping to develop a plan for a Kansas health insurance exchange.)