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Focus Of Health Law Challenges Shifts To The Supreme Court

The Justice Department Wednesday asked the Supreme Court to hear their appeal of the 11th Circuit’s August ruling that found the individual mandate unconstitutional. The moves increase the likelihood that the Supreme Court will take the case up in its next term, potentially ruling on the constitutionality of health law before the 2012 elections. Kaiser Health News is tracking the progress of the legal challenges to the 2010 health law.

Here’s how some bloggers handled the Obama administration decision and what they think it means for the law and for the politics of the 2012 elections.

At The Washington Post’s Wonkblog, Sarah Kliff describes three reasons the Obama administration decided to go straight to the Supreme Court: “The Obama administration will definitely handle the case.” Delaying it until 2013, which many argued would result from the 11th circuit appeal, would come with a big risk: “a Republican administration could be in power, and arguing the case” Another reason: “The review might not have been granted — or gone against the administration.” Also, “[t]he move shows confidence. Asking for review of the 11th Circuit decision would have been widely interpreted as foot-dragging, the administration attempting to slow a case that’s almost inevitably headed to the Supreme Court. For the White House to proactively pursue a faster timeline makes the administration look more confident that it will prevail in court.”

At The Incidental Economist, Kevin Outterson is tracking amicus briefs on the health reform law challenge.

At ThinkProgress Health, Ian Millhiser writes: “It is not the least bit surprising that the Obama Administration passed up this potential opportunity to delay the case until after the next Supreme Court term. For one thing, the Administration has consistently chosen not to engage in delay tactics throughout this litigation. Most recently, DOJ refused to argue that the courts lack jurisdiction to hear the case until 2015 despite the fact that one court of appeal concluded that they do lack jurisdiction and another expressed sympathy with that view. More importantly, the Administration should be eager to get this case in front of the justices since they are overwhelmingly likely to win once the case gets there.”

One Hot Air blogger, however, can’t make sense of the administration’s strategy: “What I can’t figure out … is why O would run the risk of the mandate being struck down before the election. That would be demoralizing for the left and delegitimizing for Obama. What’s left of his first term if his signature domestic policy ‘achievement’ ends up rubbished by SCOTUS as a violation of the Commerce Clause? I guess the thinking is that if the mandate is struck down, he can point to it as proof for liberals that they desperately need to appoint more left-wing justices to the Court and the only way to do that is to re-elect him.”

Hans von Spakovsky, writing in The Heritage Foundation’s The Foundry blog, writes about the National Federation of Independent Business request the Supreme Court take up the Florida case heard by the 11th Circuit:  “The NFIB is asking the Court to overrule this holding, since ‘Congress itself deemed [the mandate] “essential” to the Act’s new insurance regulations.’ Given that the 11th and 6th Circuits have issued ‘directly conflicting final judgments about the facial constitutionality of [Obamacare’s] mandate,’ the case is one that the Court should obviously take up given its interest in eliminating conflicting opinions in the courts of appeal.”

Peter Suderman, writing in Reason Magazine’s Hit & Run blog, says there’s still a level of uncertainty about the court: “[E]ven for the most knowledgable observers, predicting a Supreme Court ruling months in advance is mostly a guessing game. We don’t even know with absolute certainty that the Court will agree to hear the case at all, although it would be very surprising if they didn’t. What this suggests, then, is that regardless of Court’s decision, the administration wants to ensure that ObamaCare in general and the mandate in specific will be major issues in the 2012 election. And that presumably means that they’ve got their arguments ready and are confident they’ll work.”

Avik Roy, in his Apothecary blog at Forbes, offers his own take on why the DOJ chose this path: “Some had hoped that the recent decision by the Fourth Circuit to reject two Obamacare challenges, on the grounds that the parties in those lawsuits had no standing to sue, might encourage the DOJ to pursue similar arguments in an en banc petition. But it was never clear that this was a viable strategy, as a number of the other cases involve individuals who clearly do have standing.”

At the SCOTUS blog, TomGoldstein writes: “Different factors almost certainly had different weight for the various government lawyers involved. But I think there is a simpler and more straightforward answer. In situations like these, politics is never completely absent. But the government tends to act in its institutional interests first, and the interest of a particular Presidential Administration second. The ACA is a huge, complicated statute. It is hard to implement, a process that will take a lot of time. As a result, the government genuinely needs to know as soon as practicable whether the law in fact is constitutional in whole or in part. At least, that is very likely the strong view of the agencies that are effectively the clients of the Office of Solicitor General in this litigation.”

Also in the SCOTUS blog, Lyle Denniston details the Justice Department’s Wednesday filing: “‘The court of appeals’ … decision,’ the government filing argued, ‘is fundamentally flawed and denies Congress the broad deference it is due in enacting laws to address the Nation’s most pressing economic problems and set tax policy.’ Wednesday was the deadline for the Administration to file its response in the Supreme Court to an already pending case on the health care mandate — a case coming from the Sixth Circuit Court (Thomas More Law Center v. Obama, et al., docket 11-117). But, before filing that document, the U.S. Solicitor General’s office filed the government’s own petition for review of the separate decision by the Eleventh Circuit. The two appeals courts differed on the constitutionality of the insurance-purchase mandate.”