Congress touched on some important First Amendment rights two decades ago when it passed a law requiring cable systems to carry the signals of all local broadcast stations. Cable systems argued that the government had no business telling them what to carry – arguments analogous to those heard today from the opponents of the individual health insurance mandate now being challenged before the Supreme Court.
Before passing the cable “must-carry” law, however, Congress also heard from broadcasters and public-interest advocates that free, over-the-air broadcasting could be imperiled if cable systems, with their effective monopoly power and competing financial interests, refused to carry local TV stations. Those arguments are analogous to the warnings from supporters of the Patient Protection and Affordable Care Act that the health care market will be distorted and health insurance premiums driven up unless all health care consumers have to pay through insurance for the medical care they will eventually receive.
The arguments over the cable law reached the Supreme Court in 1994 and again in 1997 in a constitutional challenge brought by the cable industry. In its first ruling, the court said the government needed to do a better job of justifying the law. On remand, a three-judge federal court in Washington conducted an extensive hearing recapping all of the testimony heard by Congress earlier and then upheld the law for a second time.
The Supreme Court followed suit, in a 5-4 decision written by Justice Anthony M. Kennedy. In the critical passage in Turner Broadcasting System v. FCC (1997), Kennedy said it was for Congress, not the court, to decide how to regulate national industries even when First Amendment rights were at stake. The court had to defer to Congress’s findings “as to the harm to be avoided and to the remedial measures adopted,” Kennedy wrote, “lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.”
The Obama administration is making a blatant appeal for Kennedy’s vote in the pending challenges to the health care law by using that passage to close its most recent filing in the legal challenges before the high court. The government brief, filed on Tuesday (Oct. 18), came just one day after the 26 states challenging the law filed their brief in what appears likely to be the case that the Supreme Court will use to determine the constitutionality of the law.
The rapid-fire succession of briefs in the case originally known as Florida v. Sebelius attests to the desire of critics and the Obama administration alike for a prompt resolution of the constitutional issues. Some Republicans and conservative court watchers were speculating over the summer that the administration might try to drag out the appeals in the multiple pending challenges so as to avoid the risk of an adverse Supreme Court decision in a presidential election year.
The administration squelched that talk by filing its appeal in the Florida case the only case the administration has lost so far directly to the Supreme Court on Sept. 28 instead of asking for a rehearing before the full Eleventh U.S. Circuit Court of Appeals. The states along with the National Federation of Independent Businesses, plaintiffs in a challenge consolidated with Florida’s had filed their own appeals earlier that day. The administration wants to reverse the appeals court’s decision finding the individual mandate unconstitutional, while the challengers want to have the entire law thrown out – as the district court judge in Florida had ruled. The appeals court said the individual mandate could be severed from the law and the rest left on the books.
The latest filings also came well ahead of schedule: the states beat their deadline by 11 days, the government would have had 15 days to respond. The new filings would allow the justices to take up the case in early November, allowing oral arguments in March even if the court does not ask to expedite the case.
The court itself apparently recognizes the importance of the case. In an unusual but not unprecedented action, the court has established a separate web site page with links to docket information and briefs filed on all six of the pending petitions. In the other cases, the Sixth Circuit upheld the law, while the Fourth Circuit dismissed two challenges, in effect, as premature. Significantly, the administration is asking the court for a ruling on the merits without invoking traditional legal doctrines that could delay a decision.
The opposing arguments in the briefs from the states and the NFIB on the one hand and the government’s on the other are just like those that Congress and the president resolved in favor of the individual mandate. All four of the newest justices Roberts, Alito, Sotomayor, and Kagan swore in their confirmation hearings that they recognized the Supreme Court’s role as a limited one, requiring deference to the policy choices of the political branches. In Roberts’ famous formulation, the court calls balls and strikes, but the other branches make the rules.
The Turner Broadcasting Court, closely divided on legal doctrine like today’s, followed that approach in upholding the must-carry law. If the Roberts Court divides on the health-care law along conservative-liberal lines, as many are predicting, one can expect the government to remind Justice Kennedy several times how he voted in that case.