Opinion: Obamacare Is in Critical Condition With the Courts

The aphorism "Act in haste, repent at leisure" never applied more aptly than it does to Obamacare.

Nancy Pelosi rushed through Obamacare, without allowing time to read the bill, by explaining: "We have to pass the bill so that you can find out what is in it." Reading the bill produced last November's angry electorate.

On Monday, a Florida federal court delivered the latest blow to Obamacare, ruling that the statute is unconstitutional. It follows a similar decision from a Virginia federal court and the House of Representatives' vote to repeal the law. Monday's decision stretches out the negative news for a monumental piece of legislation hailed just a year ago as a great triumph.

Obamacare supporters should now appreciate the virtue of the Constitution's design to slow legislative changes. The Constitution is intended to create stability through reasoned deliberation. The process generally results in compromise and consensus. To the frustration of many, the structure of our constitutional democracy necessarily makes changing legislation much more difficult than it would be in a pure democracy.

The Constitution's framers anticipated that Congress and the president would sometimes thwart the Constitution's design for forcing deliberation. They therefore provided federal courts as a further protection against the power hungry. With this second federal court ruling against Obamacare, it increasingly seems that the health law may not survive when it reaches the Supreme Court.

One thing federal judges always do -- even if members of Congress do not -- is read the legislation brought before them.

Obamacare supporters will say the judicial score is tied: Two federal courts have upheld Obamacare, and two have declared part of it unconstitutional. But two against two among federal district courts is not a tie.

District judges, whether state or federal, are risk-averse when interpreting the law. District judges preside over trial courts. They normally apply established law to the facts before them. Deciding questions of law is primarily the work of appellate courts.

Federal district judges, in particular, do not like being reversed by appellate judges. Frequent reversals are not good for one's ego or the reputation. Federal district judges naturally know, without consulting statistics, that very few federal statutes are declared unconstitutional.

So given the probabilities, it's much safer and easier for a lone federal district judge to declare federal statutes constitutional. Just leave it to the panel of three appellate judges to consider more carefully whether a statute is unconstitutional. That's what appellate judges are paid to do.

Because of this, the two decisions against Obamacare are much more significant than the two that upheld the legislation.

For a judge to declare a federal statute unconstitutional, his or her opinion better be extremely well reasoned within existing case law. Predictably, many who disagree with the result in controversial cases will charge that the decision is a political one. Therefore, judicial opinions in highly scrutinized cases must necessarily go to great lengths to persuade readers that the decision is based on established constitutional principles. That usually requires quite a lengthy written opinion.

Monday's decision was long (78 pages) and very carefully reasoned. It needed to be, given its widespread consequences. Usually, a decision against a federal statute by a district court will have an immediate effect only within the particular federal district.

In this case, however, 26 states, some individuals and the National Federation of Independent Business were plaintiffs. All get the benefit of the declaratory judgment, even without an injunction. That means that until an appellate court decides otherwise, Obamacare is not applicable in 26 states, nor apparently to members of the NFIB in other states.

It will be quite some time before Obamacare supporters know whether they really achieved a victory last year.

John S. Baker Jr. is the Dale E. Bennett professor of law at Louisiana State University.