Why the White House Wants the Supreme Court To Rule on Obamacare This Term

The law, lawyers, and the court.
Sept. 27 2011 6:57 PM


The Supreme Court is less interested in ruling on Obama's health care law than you think.

Barack Obama. Click image to expand.
Does Obama want his health care law to reach the Supreme Court this term?

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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.