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SALT LAKE CITY -- The destiny of the Patient Protection and Affordable Care Act is waiting on the doorstep of the United States Supreme Court. The decision of the court will likely come down to one vote.
However, Justices Clarence Thomas and Elena Kagan are both facing allegations of conflicts of interest. While it is unlikely these allegations could lead one or both of the justices to recuse themselves thereby complicating the outcome of the case.
The first legal challenges to health care reform surfaced merely days after the bill was signed into law in March 2010. At the time, the lawsuits were seen as “little more than a Tea Party stunt.” Even when it became clear at least one of the challenges would run its course to the Supreme Court few thought there was any chance the court would overturn the legislation. At worst, it was anticipated the justices would uphold the constitutionality of the Affordable Care Act by a margin of 7-2.
Yet as the Supreme Court considers hearing arguments relative to health care legislation during the current term, few still hold on to hopes — or fears — the ruling will be so lopsided. Most observers now suspect the final ruling will come down to a single vote.
Adding even more drama to the process are allegations Thomas and Kagan have conflicts of interest and should recuse themselves.
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Calls for Thomas to recuse himself stem from revelations earlier this year his wife is an “outspoken opponent of the law” and reportedly associated with “the Tea Party and other anti-health care initiatives.” Thomas has not publicly addressed the apparent conflict of interest.
Calls for Kagan to recuse herself are connected with her appointment as Solicitor General prior to joining the court. The responsibility of the Solicitor General is to “supervise and conduct government litigation in the (Supreme Court).” Although Kagan was actively involved in many cases during her tenure with the Obama Administration, she insists her role as it related to legal challenges to the Affordable Care Act was minimal and involved “no substantive discussion of the litigation.”
Most signs indicate the Solicitor General turned Supreme Court Justice will not recuse herself. A significant clue as to her eventual involvement came earlier this year when Kagan participated in the court’s decision not to fast-track a challenge to the health care law. Her participation then suggests she likewise plans to be involved when the court formally accepts the case.
The situation with Thomas is less clear. Earlier this year, the court’s leading conservative strongly inferred he perceives the individual mandate — and perhaps the Affordable Care Act in its entirety — to be unconstitutional. Yet he has not made any comments relative to his potential recusal.
Thomas and Kagan represent two votes on opposite sides of the issue. If both of them either hear the case or recuse themselves, the verdict would likely be decided by a single vote. However, things get tricky if only one of them steps aside because it creates the potential for a 4- 4 tie.
In most cases, an appeals court with an even number of judges can temporarily pull a judge from a lower court to prevent a tie. In the case of the Supreme Court, there is no legal authority for filling a temporary vacancy caused by the provisional recusal of a Justice.
If a Supreme Court decision results in a tie, the procedure is for the ruling of the lower court to be upheld.
As it relates to health care reform, a tie vote would create a situation in which the case chosen by the Supreme Court becomes as important as the final vote.
While much of what happens behind the scenes in the Supreme Court remains a mystery, “it almost always hears cases in which a lower court has struck down a federal law.” In this instance, the court would likely review Florida et al v. United States Department of Health and Human Services in which the Eleventh Circuit Court of Appeals ruled the individual mandate to be unconstitutional.
In other words, a tie vote in the Supreme Court would likely result in the reaffirmation of the decision of the Eleventh Circuit Court of Appeals that the individual mandate is unconstitutional.
The caveat is the Supreme Court does not create national precedent in the event of a tie. A 4-4 vote would uphold the ruling of the lower court but the decision would only be valid in the jurisdiction of that specific appeals court. The other six legal challenges which have progressed to appeals courts thus far would not be affected, thereby creating the potential for numerous regional interpretations of a single piece of national legislation.
Since the Affordable Care Act is predicated upon many principles of uniformity and cooperation, it is highly unlikely the legislation could survive such an outcome.
Of course, the potential for a judicial stalemate in the Supreme Court is contingent upon the self-determined recusal of either Thomas or Kagan.
Nobody knows how things will play out, but the conflicts of interest facing Thomas and Kagan add another dimension of complexity to the ongoing national health care reform debate.
Kurt Manwaring is pursuing a graduate degree in public administration at the University of Utah. He is a consultant with Manwaring Consulting, LLC and maintains a personal blog at www.kurtsperspective.blogspot.com.
