Obama administration must make risky healthcare decision

Obama administration lawyers face a decision by Monday that carries a high political risk and will probably determine whether the Supreme Court decides on the constitutionality of the healthcare law before next year’s presidential election.

The Justice Department could ask the full U.S. 11th Circuit Court of Appeals in Atlanta to reconsider a 2-1 decision in August that declared the law’s mandate that all Americans must have health insurance unconstitutional. But seeking the full court review could take weeks, or even months, and probably push back a Supreme Court ruling until 2013.

Or government lawyers could opt to skip the full review in the lower court and appeal directly to the Supreme Court this fall. That in turn will probably lead to a constitutional ruling on President Obama’s healthcare law by next summer.

Under the appeals court’s rules, the Justice Department must notify the 11th Circuit by Monday whether it will seek a full court review. In recent weeks, lawyers on both sides of the case have been speculating on whether Obama’s legal team is eager to get the healthcare dispute before the Supreme Court soon, even if it means risking an embarrassing defeat for the president as he seeks reelection.


“Everyone is waiting to see what they do Monday,” said Karen Harned, a lawyer for the National Federation of Independent Business. “For the Supreme Court, this is only a question of when they will decide it. And we are hoping it will be decided in the next term.”

The fate of Obama’s healthcare overhaul figures to be at the center of next year’s presidential race. Republicans have been running on a promise to “repeal Obamacare.” If the Supreme Court were to strike down Obama’s signature law as an unconstitutional overreach by the president and a Democratic Congress, it could deal a damaging blow to the president’s campaign for reelection.

However, if the justices were to uphold the law as a reasonable regulation of the nation’s health insurance market, their decision would give a powerful endorsement to Obama’s crusade for healthcare reform just when he most needs it. A pro-Obama ruling by the court would also badly undercut claims by “tea party” activists who contend federal regulation of healthcare is outside the bounds of the U.S. Constitution.

“This is hugely important, and everybody knows it,” said Washington lawyer Michael Carvin, who is working on the business federation’s challenge to the law. The outcome of the court case “will have profound significance” not only on healthcare but on the relationship between the government and citizens, he said.

The business federation joined a broad lawsuit filed in Florida along with Republican governors and state attorneys from 26 states. They sought a ruling striking down the entire healthcare law. In August, they won a major but partial victory when the appeals court panel ruled Congress went too far when it required individuals to buy health insurance or pay a tax penalty.

In June, however, the U.S. 6th Circuit Court in Cincinnati upheld the law in a 2-1 decision. Lawyers for the Thomas More Law Center in Michigan have asked the Supreme Court to review that decision. While the justices could agree to hear the Thomas More case, most lawyers say they doubt the court will take up the issue until the Justice Department weighs in.

The justices will gather for the first time on Monday morning to discuss and vote on the hundreds of appeal petitions that arrived over the summer. Between now and late January, they will grant review of cases that will be argued and decided by next summer. If the healthcare case is to be among them, an appeal needs to be before the court by January.

Washington attorney Miguel Estrada questioned whether the administration wanted a quick decision. He noted that the Justice Department asked the high court for a 30-day delay in responding to the appeal filed by the Thomas More lawyers. “They are trying to drag it out,” Estrada said.


But supporters of the administration said the government lawyers had pressed ahead in the lower courts to get a decision on the constitutionality of the Affordable Care Act.

“My sense is the administration is confident the Supreme Court will uphold the law,” said former Solicitor General Walter Dellinger. “I think they want a decision as soon as they can get one.”