STEVE INSKEEP, host:
In case you're keeping score at home - and many people are - four federal judges have split right down the middle on the healthcare law. In December, a federal judge struck down the requirement that citizens buy health coverage. This week another federal judge invalidated the entire law. So two judges have said it's unconstitutional. Two other federal judges have upheld the law, which leaves the rest of us wondering what to think.
We have some perspective now from NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Experts have this piece of advice: Don't get too excited. History indicates early decisions are hardly predictive.
Remember that when the question of school segregation went to the Supreme Court in the early '50s, federal judges in each of the five cases before the court had ruled that segregating the races in school was constitutional.
More recently, the record was equally unpredictive for challengers to Bush administration measures in the war on terror. Civil liberties advocates celebrated a large number of early victories, only to see them evaporate as the cases worked their way up the judicial food chain.
(Soundbite of news broadcasts)
Unidentified Man): A federal judge has ruled a clause in the Patriot Act unconstitutional.
Unidentified Woman: A federal judge in Detroit has handed the Bush administration its first legal defeat in the controversy over warrantless surveillance by the National Security Agency.
Unidentified Man #2: Well, this is the second time that a federal judge in California has declared a section of the large and complex Patriot Act unconstitutional.
TOTENBERG: Among the many early rulings later reversed were these: District courts ordered the Bush administration to disclose the names of prisoners detained without charge in the aftermath of 9/11 - those held as material witnesses, and those held for investigation. But those rulings were all overturned on appeal.
Over the course of more than a decade, a federal district court judge and an appeals court repeatedly ruled unconstitutional a federal law that made it a crime to train members of a terrorist organization in how to resolve their disputes peacefully. But last year the U.S. Supreme Court overturned those decisions and upheld the law.
In another series of challenges to Bush administration policy, those seized as material witnesses after 9/11 contended that the material witness statute was being used unconstitutionally to detain them without charge, not to ensure their presence at trial. Three district courts split on the issue, but a federal appeals court in New York unanimously upheld the detention of even potential witnesses.
Federal judges at various points struck down a variety of provisions in the Patriot Act. One judge struck down the warrantless surveillance conducted by the National Security Agency. But in all these cases, appellate courts overturned or severely modified those decisions. Even the Foreign Intelligence Surveillance Act Court, set up with the explicit purpose of reviewing requests for government wiretaps, was overturned for the first time when it ruled against the government.
The Bush administration did lose four important cases in the U.S. Supreme Court, but with one exception those losses involved the rights of detainees at Guantanamo, rights that the U.S. Court of Appeals in Washington, D.C. had declared largely nonexistent. The Supreme Court reversed, declaring that the detainees do have the right to challenge their detentions in court and declaring unconstitutional the military tribunals that the Bush administration had set up.
Now it's the Obama administration's turn to defend a major initiative, and the lessons of history caution against drawing too many conclusions. So says Deborah Pearlstein, a scholar at the Woodrow Wilson School at Princeton University.
Ms. DEBORAH PEARLSTEIN (Woodrow Wilson School, Princeton University): I don't think you can put too much faith in early rulings, especially in cases where, like this one, the political stakes are so high.
TOTENBERG: Notre Dame Law Professor Richard Garnett agrees, but adds that early rulings do signal that arguments that once might have been dismissed should be taken seriously.
Professor RICHARD GARNETT (University of Notre Dame): If an argument wins at the district court level, that to me signals that it's - at the very least it's plausible. And plausible arguments need to be engaged.
TOTENBERG: In short, assume nothing, at least until the Supreme Court rules.
Nina Totenberg, NPR News, Washington.
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