Apparently the Obama administration believes that 2012 will not be crazy enough already. That would explain why it has decided not to appeal a ruling from a three-judge panel of the 11th Circuit Court of Appeals striking down the individual mandate at the heart of its health reform law. Instead of asking the full, 11-member court to hear the case, the administration has voluntarily cleared the path toward the Supreme Court as early as this spring. That means there could be a ruling by the end of June, just a few months before the election.
Right now the individual mandate has been upheld, by a 2-1 margin by the Sixth Circuit and struck down 2-1 at the 11th Circuit, while the Virginia lawsuit challenging the act was dismissed on procedural grounds at the Fourth Circuit. This split between the federal appeals courts almost demands that the high court agree to hear the case, as does the fact that it's the Justice Department filing the appeal.
Court watchers immediately began to speculate about why the administration would rush to tangle with the Supreme Court this term instead of next, and—with the caveat that nobody knows anything yet and the Justice Department isn't talking—what all this will mean for the 2012 election. Politico published an article speculating that the administration took a pass on an appeal before the full 11th Circuit because its chances of success before the full court were slim. It quotes Randy Barnett, who has worked with plaintiffs in these cases: "The president and solicitor general deserve full credit for refusing to employ delaying tactics in this pressing constitutional controversy." Then it quotes former acting solicitor general (and frequent Slate contributor) Walter Dellinger, who has worked to defend the legislation: "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."
At the Volokh Conspiracy, Orin Kerr suggests that perhaps the Obama administration
simply concluded that the prospects of success in a petition for rehearing were remote, and that the 11th Circuit judges who might write opinions respecting the denial of rehearing would hurt the government more than help it. Perhaps they figured that the Eleventh Circuit was the best vehicle for review, so it was better to petition from that case. Perhaps they just figured that it's in everyone's interests to resolve a facial challenge sooner rather than later. Perhaps the Obama Administration wanted the case decided in the middle of the Presidential campaign, for reasons of either electoral or litigation strategy.
On his blog, election law expert Rick Hasen teases out why the Obama administration could benefit from making all this into the court's problem this spring:
If the Court strikes down the law, Obama makes more of an issue of a court out of control (think FDR) during the 2012 campaign (something I suggested in this Slate piece). If the Court upholds the law, this takes some of the wind out of the argument likely to come from the Republican presidential nominee that the health care law is unconstitutional.
Peter Suderman at Reason makes the same point, albeit differently:
If the mandate is upheld, Obama will claim constitutional victory, and argue that Republicans pursued a frivolous challenge in service of political gain. If not, he'll presumably argue that the challenge itself represented a partisan attack by political foes who aren't interested in fixing the health care system and that America's court system has become hopelessly biased by an extremist conservative judiciary that's in the thrall of the Republican party.
Sarah Kliff offers another plausible reason for the administration's decision to hustle into the high court: It allows the Obama Justice Department to defend the statute, as opposed to the Romney Justice Department trying to explain next winter why they were for the mandate before they were against the mandate, and why it's only constitutional sometimes.
But much of the analysis we've seen quietly assumes that the court will eventually hand down a blockbuster 5-4 ruling that perfectly tracks the political ideology of the various justices. Reuters' James Vinci suggests it may all hinge on Chief Justice John Roberts and Anthony Kennedy. At a panel last weekend at William & Mary law school, court watchers—including Dellinger—mainly agreed that this would not be a close vote: The high court would find the law constitutional. I argued last winter that the fate of the law at the high court rests less on constitutional law than on the willingness of the court's conservatives to stretch a good bit past their collective legal worldviews to strike down this law.
I remain unsure that there just are five justices at the high court eager to have the court itself become an election-year issue. I don't think Chief Justice John Roberts wants to borrow that kind of partisan trouble again so soon after Citizens United, the campaign-finance case that turned into an Obama talking point. And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about. Certainly there are one or two justices who might see striking down the ACA as a historic blow for freedom. But the long game at the court is measured in decades of slow doctrinal progress—as witnessed in the fight over handguns and the Second Amendment—and not in reviving the stalled federalism revolution just to score a point.
That's why I suspect that even if there are five justices who believe the individual mandate is unconstitutional, there probably aren't five votes to decide that question in this instant. Lyle Denniston over at Scotusblog reminds us that the court has a lot of options to forestall a showdown with the president. If the justices opt to consider the technical question raised at the Fourth Circuit—about who has legal standing to challenge the mandate in the first place—the court could dodge the constitutional question altogether until 2015, when the first penalties will be paid. It's not so much a matter of the court having to decide whether to bring a gavel to a knife fight. It's just that this isn't really this court's knife fight in the first place.
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