By Rob Weiner, formerly Associate Deputy General in the U.S. Department of Justice is a partner at Arnold & Porter LLP. Many of the points in the following post are reflected in an earlier post for Balkinization called “Politics by Other Means,” though with a somewhat different focus.
Ambrose Bierce defined “accuse” as, “To affirm another's guilt or unworth; most commonly as a justification of ourselves for having wronged him.” Thus it is that the opponents of the Affordable Care Act, with no hint of irony, accuse those supporting the Act of interjecting politics into the cases before the U.S. Supreme Court for the purpose of intimidating the Justices. But it was those same opponents -- Republican politicians -- who initiated the litigation after Democrats won a partisan battle in the legislative arena and who have overtly framed the lawsuits as part of a grand political strategy.
The focus of the legislative battle was the Affordable Care Act, adopted on March 23, 2010, with no Republican votes. As Republican legislators were vowing to repeal the newly enacted bill, the Republican Attorney General of Florida, along with 11 other Republican State Attorneys General and one Democrat, filed suit seven minutes after President Obama signed it into law. Four of the Republican AGs proceeded over the objections of their Democratic governors. A twelfth Republican AG, from Virginia, sued separately.
Bypassing the federal courthouse only blocks from his office in Tallahassee, the Florida AG brought the suit more than 200 miles away in Pensacola. That jurisdiction had no connection to the case, but it was an enticing forum for the plaintiffs. All three of its federal district court judges are conservatives appointed by Republican presidents. Although the federal rules did not prohibit this forum shopping, it highlighted the partisan coloration of the case.
A few months later, seven more states joined the suit. Three were represented by their Republican AGs. The other four states, however, had Democratic AGs who believed the litigation to be meritless. The Republican governors of those states therefore filed instead. In January 2011, seven months after the court-ordered deadline for adding new parties, four more Republican AGs and one Republican governor sought to join the litigation. Why the belated “me-too”? One reason: the November 2010 elections, which changed the leadership of these five States from Democratic to Republican.