Editorial: Supreme Court must act quickly

  • Updated: February 12, 2011 - 4:29 PM

The country needs an expedited review of Affordable Care Act.

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Consumers, health care providers and the nation's 50 states deserve an expedited answer from the U.S. Supreme Court on whether the 2010 Affordable Care Act (ACA) is constitutional.

Divided federal district court rulings -- two in favor of the law, two against -- have put the landmark health reform legislation in legal limbo. An answer from the nation's highest court is vital.

Most of the ACA's game-changing reforms -- the online exchanges, subsidies and mandate -- don't go live until 2014, but the work of implementing these sweeping reforms will eat up much of the next three years.

Without an answer from the Supreme Court, health providers and states have two unacceptable choices: They can continue investing time and resources to comply, knowing that this may all go to waste if a key portion of the law (or the entire law) is declared unconstitutional at some point, or they can gamble by suspending preparations.

The risk of standing pat is that they would likely face an insurmountable amount of ground to make up if the law is upheld.

"This is important for people who support the law and for people who don't support the law,'' said Julie Brunner, executive director of the Minnesota Council of Health Plans, a trade group favoring an expedited review.

Many health care providers also want the issue settled sooner vs. later. If the law is defective, it's better to know now so policymakers can pursue other solutions to save the nation's imploding health care system.

"We need to get through this and do the hard work of transforming health care,'' said Park Nicollet's CEO, Dr. David Abelson.

The Supreme Court rarely bypasses courts of appeal. But its own Rule 11 makes it possible if there's a showing that a case is "of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.''

Very few cases have met this standard: A legal expert consulted this week could name four since the 1940s. One involved former President Richard Nixon's compliance with a subpoena for his tapes.

The push for the Supreme Court to pick up its usual pace gained momentum this week.

On Wednesday, Virginia's attorney general petitioned for an expedited review, saying the law's "complex and significant regulatory changes" met the "imperative public importance" standard.

Twenty-eight Republican governors, including Wisconsin's Scott Walker and Iowa's Terry Branstad, also signed a letter to President Obama calling for faster review.

The GOP governors understandably want "certainty as soon as possible" and fear "years of litigation in the circuit courts" before there's finality. They're right.

This is one of the most critical public policy challenges the nation has grappled with in decades.

The Supreme Court justices probably aren't eager to take up this politically charged topic, but the nation can't afford to wait while they do what they usually do: wait for multiple and differing rulings from the circuit courts, as well as law review articles by leading legal academics.

The Office of the Solicitor General needs to heed this urgency. This office represents the nation's interests, and its decisions carry weight with the Supreme Court justices.

They could be persuaded to grant expedited review if the solicitor general says speed is in the national interest, which it definitely is. State attorneys general banding together to call for faster review could also have an influence.

The Supreme Court should not weigh in quickly on every hot-button case. Its measured pace generally serves it well. The ACA is the exception.

Clarity is paramount so the nation can move forward and fix its failing health care system.

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