Obama gambles on health reform before Supreme Court

By asking justices to hear the case now, the White House probably is ensuring that an opinion will come before the 2012 elections, experts say.

By Alicia Gallegos — Posted Oct. 10, 2011

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Legal experts say the decision by the Obama administration to ask the U.S. Supreme Court to review a 26-state challenge of the health system reform law shows confidence that the justices will uphold the statute, but the move poses some risk. The high court opinion probably will arrive in the thick of the 2012 election process, and any decision that goes against the law will be used to try to weaken the president's re-election campaign, experts said.

"It's a roll of the dice," said attorney Thomas Miller, a former health economist for the Joint Economic Committee and resident fellow with the conservative American Enterprise Institute for Public Policy Research in Washington. However, the administration is facing some implementation deadlines that make it unwise to keep the statute in limbo into 2013 or beyond, he said. "The court needs to deal with this."

The case in question stems from a challenge by Florida and 25 other states against the Patient Protection and Affordable Care Act -- specifically a provision that requires individuals to obtain health coverage starting in 2014 or pay a penalty. A lower court ruled that the mandate was unconstitutional and said the requirement was not severable from the rest of the law, thus finding the entire law invalid. A panel of the 11th U.S. Circuit Court of Appeals ruled that the mandate was unconstitutional but concluded that the rest of the law remained in force.

The 11th Circuit's August ruling conflicts with a June 29 appeals court decision in Cincinnati on a separate lawsuit. In that case, the 6th U.S. Circuit Court of Appeals said lawmakers have the legislative power under the U.S. Constitution to require individuals to obtain health insurance.

In the multistate lawsuit, the Justice Dept. had the option of requesting another review by the full appeals court, a process that could have delayed eventual Supreme Court consideration and pushed a final ruling into 2013. Instead, the department on Sept. 28 petitioned the high court to tackle the dispute.

In a statement, the Justice Dept. said it has defended the law successfully, and that the reform law question is now "appropriate for review by the Supreme Court."

"Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed. We believe the challenges to [the] Affordable Care Act -- like the one in the 11th Circuit -- will also ultimately fail and that the Supreme Court will uphold the law," the department said.

The 26 states challenging the law also have asked the Supreme Court to review the case.

"This health care law is an affront on Americans' individual liberty, and we will not allow the federal government to violate our constitutional rights," Florida Attorney General Pam Bondi said in a statement. "Our country urgently needs a final ruling from the U.S. Supreme Court. This case is paramount in our history and will define the boundaries of Congress' power as set forth in our Constitution."

Reducing further delays

The decision by the Obama administration to skip another appeals review and go straight to the Supreme Court is a logical one, said attorney Jane Perkins, legal director for the National Health Law Program based in Washington. The public interest firm works on behalf of the poor, disabled people and children.

Because other courts of appeals have heard and read similar arguments on the issue, waiting for yet another decision by the same court only would cause further delays, she said.

"It makes sense to have the [Supreme Court] get all these cases in front of it at the same time. They're essentially looking at the same briefings," Perkins said. "Given that courts of appeals around the country are rendering decisions on the [Affordable Care Act's] constitutionality, I don't think [another appellate review] would add much to the analysis."

The longer the lawsuits against the law linger, the longer states will resist implementing all of the parts of the law they are required to follow, said the AEI's Miller, who also advised Sen. John McCain (R, Ariz.) during his 2008 presidential campaign. In addition, although being on the losing end of a high court decision near election time is a risk for Obama, winning would work in his favor whether or not he wins re-election, Miller said.

"The president may not be around in 2013, but if [the law is upheld by the court], then you have six months to work as fast as possible putting the regulations in. Once you put in regulations, they're hard to take out by another administration," he said.

Although the Supreme Court had not accepted the case officially at this article's deadline, it probably will do so, considering that there is a split among appellate courts and that the debate relates to legislation that partially is in effect, Perkins said. The issues of federalism and states' rights have interested the high court in the past, she said.

Perkins declined to predict the Supreme Court's ultimate decision, but she noted that since the 1930s, there never has been a high court decision declaring an entire federal law void because of one element.

Miller predicted the high court will rule against the individual insurance mandate by a 5-to-4 margin but keep the rest of the law intact.

He said another potential "wild card" is the Anti-Injunction Act, which bars plaintiffs from suing over a tax until after they actually have been required to pay it. If the Anti-Injunction Act is applied in this case by the Supreme Court, justices might decide that the states do not have standing to sue over the reform law and that any challenge would need to come from citizens who incur the penalty starting in 2014. That challenge would not be decided by the high court until after 2015.

Observers said the Supreme Court probably will decide whether to hear the case within the next few months and that oral arguments could be heard by April 2012. A decision is expected by June 2012. The high court probably will have at least one more appeals court decision to consider before then. The District of Columbia appellate court could rule on the reform law by December.

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