Private: Tracking Progress and Obstacles in Implementing the Health Care Reform Law

Those interested in monitoring how the Supreme Court will rule on challenges to the Affordable Care Act should mark their calendars now for the last week in June of 2012, former acting solicitor general Walter Dellinger, chair of the appellate practice at O'Melveny & Myers, said during an ACS discussion about challenges to implementation of the health care law.

And on that June  day when the Supreme Court does issue a decision, Chief Justice John Roberts will join the majority to uphold the law, Dellinger predicted.

"I think at the end of the day Chief Justice Roberts will be in the majority to uphold this," Dellinger said. "He is thinking of a very long philosophical position as a chief justice and he would not want to adopt a principle that said that 25 or 30 or 40 years from now, the only way Congress could deal with a social problem is by providing a monolithic, single, governmental bureaucratic approach, rather than creating incentives for people to utilize choices within the free market. Why would someone who has grown up with conservative principles want to adopt that?"

The panel discussion featured a keynote address by former Senator Tom Daschle, who predicted that, even if all goes well in implementing the Affordable Care Act, it will take at least a generation before the law fulfills its potential. But, he continued, it's potential worth fighting for.

"This is a fight for the equality and the liberty of all Americans and their moral right to health security at long last," he said.

As the debate that followed his remarks got under way, news broke that U.S. District Court Roger Vinson had issued a seven-day stay of his decision in Florida federal court striking down the health care law, allowing the Department of Justice time to appeal.

"I think what's most important is that we have the news that we've just had, which is that the Vinson decision has actually been stayed," Center for American Progress Chief Operating Officer Neera Tanden said in response to the news. She continued:

The decision by Judge Vinson a few weeks ago was the greatest threat to implementation because it just created a level of uncertainty. And I think it is extremely noteworthy that really the most conservative judge, who chose to ... throw out the entire legislation, when confronted with a set of facts about the implications for states, businesses and the American people of that decision, chose to stay his own decision to await appellate review.

Ilya Somin, an associate professor at George Mason University School of Law, countered that the stay does not say anything significant about the substance of the health care challenge, reasoning that if Vinson hadn't granted the stay, the appellate court would have.

"I don't think a lot should be made of it ... I don't think the stay reflects any judgment by Vinson or anyone else on the question of whether the law has benefits that outweigh its costs or do not," Somin said. "Rather, it's fairly standard practice in this kind of litigation."

National Senior Citizens Law Center Public Policy Counsel Simon Lazarus put the arguments into perspective by asking:

Does the constitution that the framers wrote prevent the Congress of the United States, the people of the United States and their elected representatives, from ensuring that people who have preexisting medical conditions have access to affordable health care and health insurance? ... Does the Constitution put the people of the country and Congress in a straightjacket like that?

Watch the full discussion here.

Constitutional Interpretation, Equality and Liberty, Separation of Powers and Federalism, Supreme Court