The Affordable Care Act will get its final day in court soon. The Obama administration chose on Monday not to ask the 11th Circuit Court of Appeals to re-hear a key case in which the court found the law’s requirement that individuals buy insurance unconstitutional. The move suggests that the administration intends to ask the Supreme Court to decide once and for all whether the Democrats' signature health care bill is constitutional.
That puts the Supreme Court in the uncomfortable position of ruling on a politically polarizing legislation during election year. Whatever the court decides will inevitably be an issue in the presidential election, and a controversial ruling could undermine the court’s authority. But the court will be under substantial pressure to take the case, since the three circuit courts that have considered the question have issues sharply conflicting rulings. And the Supreme Court rarely refuses a government request to review a lower court decision striking down a major piece of legislation.
The conventional wisdom has been, as Sarah Kliff says, that delaying review of the case would give the law more time to demonstrate its effectiveness. It may simply be, as Tom Goldstein writes, that the government needed a decision soon for purely practical reasons. But as Kliff argues, the move suggests that the administration thinks it can win. It also ensures that Obamacare will be defended by a Democratic Justice Department, which might it might not be if the Supreme Court were to take up the case in 2013. Rick Hasen adds that in any case whatever the court decides might turn out to be a political advantage for the president. If the court upholds the law, it will be difficult for Republicans to continue to argue that it is unconstitutional. But if the court overturns the law, the president can portray the Roberts court as an overreaching activist court and make it a target of his campaign. Either way, it looks like a definitive ruling on the health care law will come down soon.
Photo: Chuck Kennedy