The Affordable Care Act is back in court on Wednesday, with the government and a coalition of 26 states presenting arguments in an Atlanta courtroom for and against the constitutionality of the law. There are dozens of similar cases currently winding their way through federal courts, but the ruling that comes out of Atlanta could be the strongest indicator yet of whether the ACA will ultimately be allowed to stand.
So far, all of the federal district judges that have ruled on the constitutionality of the ACA's individual mandate the centerpiece to most legal challenges have matched the generally held opinion of the party of the President who appointed them. Democrat-appointed judges have ruled that the ACA is perfectly fine; Republican-appointed judges have ruled that it violates the constitution.
There haven't been any decisions yet at the appellate level, although most court watchers are expecting the Fourth Circuit in Virginia to say the law is constitutional. The reason: All three judges on the randomly selected panel chosen to rule on the case happened to have been appointed by Democrats. See the pattern? Until we see a ruling in which a Republican-appointed judge says the law is constitutional or a Democrat-appointed judge says it's not, we're left with little indication about the law's final fate. (We're also left with the impression that the supposed impartial jurists of the federal court system are far more political than we would sometimes like to believe.)
The case being argued on Wednesday takes place in the 11th Circuit Court of Appeals. A three-judge panel there was handed the case after Reagan-appointed federal district court Judge Roger Vinson ruled in January that, not only is the individual mandate unconstitutional, but so is the entire ACA. Most news outlets are reporting simply that, of the three judges on the 11th panel hearing the case, two were appointed by Clinton and one by George H.W. Bush. This is true. But it might not totally predict the final ruling. (Appellate panels can split, with two judges issuing the majority binding opinion and the third issuing a dissent.)
As Ian Millhiser of Think Progress points out, one of the Clinton appointees Stanley Marcus originally joined the federal bench thanks to Ronald Reagan, who appointed him to the district level 12 years before Clinton promoted him to the appeals court. The other Clinton appointee, Frank Hull, was appointed to the district court and appellate court by the Democratic President. The third judge, Joel Dubina, was appointed to the district court by Reagan and the appellate court by Bush Sr. Dubina's daughter is a freshman congresswoman who voted to repeal the ACA.
So, does this mean the three-judge panel could rule either way? Pretty much. It certainly means that the 11th Circuit ruling is the one to watch at this point. Not only is its outcome unpredictable because of mixed party lines, but the lead plaintiffs in the case are governors and attorneys general from a whopping 26 states.
Though the 11th Circuit's case looks to be the most meaningful, there's plenty of action elsewhere. The government and Thomas More Law Center argued their cases last week before the Sixth Circuit in Cinncinati. Another appeal will be heard in the Ninth Circuit in California in July. Meanwhile, other district court decisions will be handed down and appealed as the monumental issue of the constitutionality of the ACA makes its way to the Supreme Court.
When will it get there? No one knows for sure, although Politico reports that if the government does not prevail with the three-judge panel in the 11th Circuit, it may ask all the judges on that court to rule on the case. A full review of a case by all judges in a particular appeals court like the 11th is known as "en banc." Such a move, if undertaken by the court, could drag out the lower court proceedings, which is probably the point. The Administration may be hoping to delay a final court ruling until after the 2012 presidential election.