The Supreme Court will have to decide whether to take the case during a presidential election. Health suit might head to SCOTUS

The Obama administration chose not to ask the 11th Circuit Court of Appeals to re-hear a pivotal health reform case Monday, signaling that it’s going to ask the Supreme Court to decide whether President Barack Obama’s health reform law is constitutional.

The move puts the Supreme Court in the difficult position of having to decide whether to take the highly politically charged case in the middle of the presidential election.


The Justice Department is expected to ask the court to overturn an August decision by a panel of three judges in the 11th Circuit Court of Appeals that found the law’s requirement to buy insurance is unconstitutional. The suit was brought by 26 states, the National Federation of Independent Business, and several individuals.

Since the ruling, the Justice Department had until Monday to ask the entire 11th Circuit to review the case. Administration lawyers didn’t file the paperwork by the 5 p.m. deadline, so the ruling would stand unless the Justice Department asks the Supreme Court to step in.

The petition isn’t due until November, and the administration could get an extension.

Opponents of the law had expected the government to ask for the so-called en banc hearing to delay a ruling by the Supreme Court.

“The president and solicitor general deserve full credit for refusing to employ delaying tactics in this pressing constitutional controversy,” said Randy E. Barnett, a Georgetown Law professor who is working with the plaintiffs.

But former acting Solicitor General Walter Dellinger, who has worked on briefs in support of the legislation, said the move should be read as a sign of confidence from the administration.

“This confirms what I had already concluded: That the government is confident that it’s going to prevail in the Supreme Court and would like to have a decision sooner rather than later,” Dellinger told POLITICO.

The issue of the constitutionality of the individual mandate has been widely expected to be decided by the Supreme Court. The key question has been the timing. The Justice Department’s apparent decision to ask the Supreme Court to review the case greatly increases the chances the issue will be heard in the 2011-12 term, which begins Monday.

The Supreme Court now has several strong reasons to accept the case. The court rarely declines requests from the government to take a case, especially in situations in which a circuit court has struck down a piece of a high-profile law.

There is also a split between the appeals courts. The 6th Circuit Court of Appeals has upheld the mandate, the 11th Circuit has ruled it unconstitutional, and the 4th Circuit has ruled that a tax law prevents it from issuing a decision on the mandate until at least 2014.

“The odds are pretty significant the court will take the case now,” said Ron Pollack, executive director of Families USA, which has filed briefs in support of the law.

But a Supreme Court ruling in the middle of a presidential election could carry serious political risks, since a decision upholding or striking the mandate has the potential to galvanize either Republicans or Democrats.

If the court accepts the case before January, it is likely to be put on the calendar to be heard in the spring. A decision would likely be postponed until June.

The 26 states and the NFIB have said they would work quickly to file briefing papers to ensure the case can move quickly.

The Justice Department did not explain its decision, but there were strong reasons for it not to pursue the en banc hearing.

There are only five judges appointed by Democrats on the 11-judge circuit, and one them has already ruled to strike down the mandate. So far, many judges have ruled along the party lines of the president who nominated him or her. So it’s unlikely the government would have gotten a better response out of the full panel.

It’s also possible that the 11th Circuit wouldn’t have agreed to re-hear the case.

This article first appeared on POLITICO Pro at 5:34 p.m. on September 26, 2011.