WASHINGTON — As the Obama administration presses ahead with the new health care law, officials are bracing for the possibility that a federal judge in Virginia will soon reject its central provision as unconstitutional and, in the worst case for the White House, halt its enforcement until higher courts can rule.
The judge, Henry Hudson of U.S. District Court in Richmond, has promised to rule by the end of the year on the constitutionality of the law's requirement that most Americans obtain insurance, which does not take effect until 2014.
Although administration officials remain confident that it is constitutionally valid to compel people to obtain health insurance, they also acknowledge that Hudson's preliminary opinions and comments could presage the first ruling against the law.
"He's asked a number of questions that express skepticism," said one administration official who is examining whether a ruling against part of the law would raise questions about whether other provisions would automatically collapse. "We have been trying to think through that set of questions," said the official, who insisted on anonymity because he was not authorized to discuss the case freely.
While many newly empowered Republican lawmakers have vowed to repeal the health care law in Congress, a more immediate threat may rest in the federal courts in cases brought by Republican officials in dozens of states. Not only would an adverse ruling confuse Americans and attackthe law's underpinnings, but it could frustrate the steps hospitals, insurers and government agencies are taking to carry out the law.
"Any ruling against the act creates another PR problem for the Democrats, who need to resell the law to insured Americans," said Jonathan Oberlander, a University of North Carolina political scientist, who wrote in the New England Journal of Medicine last week that such a ruling "could add to health care reform's legitimacy problem."
So far, there has been only one ruling on the merits among nearly two dozen legal challenges to the act. Last month, a U.S. district judge in Michigan upheld the law. Another judge, Roger Vinson of U.S. District Court in Pensacola, Fla., has joined Hudson in writing preliminary opinions that seemingly accept key arguments made by state officials challenging the law.
Unlike the judge in Michigan, who was appointed by President Bill Clinton, both Hudson and Vinson were appointed by Republican presidents.
"We are not operating under the assumption that those two judges are inevitably going to rule against us," the administration official said. "But of course we're planning for the possibility that judges will reach different conclusions."
The novel question before the courts is whether the government can require citizens to buy a commercial product like health insurance. Because the Supreme Court has said the commerce clause of the Constitution allows Congress to regulate "activities that substantially affect interstate commerce," the judges must decide whether the failure to obtain insurance can be defined as an "activity."
Administration officials, as well as some lawyers for the plaintiffs, agree that 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.
Virginia's attorney general, Kenneth Cuccinelli II, a Republican who filed the Richmond lawsuit, argues that if Hudson rejects the insurance requirement he should instantly invalidate the entire act on a nationwide basis.
Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that congressional bill writers did not include a "severability clause" that would explicitly protect other parts of the sprawling law if certain provisions were struck down.
The administration argues that other key provisions do not depend on the insurance mandate. Those provisions include establishing health insurance exchanges, subsidizing premiums through tax credits and expanding Medicaid eligibility, all scheduled for 2014.
Nor, administration officials said, would an adverse ruling necessarily undermine certain insurance regulations that recently took effect, like the requirement that insurers cover children younger than 26 on their parents' policies.
Any illusion the cases are not highly politicized was lost when Republican leaders raced this month to file friend-of-the-court briefs in Pensacola, and Democrats responded with briefs from state legislators and supportive economists. Among the Republicans intervening in the case are Rep. John Boehner of Ohio, the future speaker; 32 U.S. senators; and Gov. Tim Pawlenty of Minnesota, a possible presidential candidate.