Politico
Lawsuits hit faster track to Supreme Court
By Jennifer Haberkorn
August 15, 2011

Friday’s federal court ruling against a key provision of the health care reform law makes it almost certain the Supreme Court will decide the law’s constitutionality in the 2012 term.

If the high court decides to take up the case, it probably won’t rule until June — ensuring that President Barack Obama’s signature law will be the center of another very public debate just five months before the election.

The court has two very strong reasons to take the case now. First, there are two circuit courts that have ruled in opposite directions on the constitutionality of the law’s individual mandate. And second, because the Obama administration lost in the latest ruling, it is going to be the one filing the appeal. The Supreme Court rarely turns does such requests from the federal government, especially on an issue with the scope of the health reform law.

On Friday, the 11th Circuit Court of Appeals said the reform law’s requirement that nearly all Americans buy insurance is unconstitutional. The ruling came six weeks after the 6th Circuit said in a nearly identical suit that the individual mandate was constitutional. The 4th Circuit is expected to rule soon on two similar cases.

The Obama administration has said it would appeal any rulings it lost in the more than 30 cases filed against the health law. The Department of Justice has 90 days to decide whether it wants to appeal directly to the Supreme Court or ask the entire 11th Circuit Court of Appeals to review the case first in an en banc hearing.

The en banc hearing would merely slow down the appeal process, since the losing party is all but certain to appeal to the Supreme Court. So the administration could try to push a Supreme Court ruling past the 2012 election by asking for the en banc hearing — but there wouldn’t be much of a point otherwise, since they’re not likely to get a better ruling from the full court.

“I would be surprised if they request a hearing en banc just because the 11th Circuit as the whole is quite conservative,” said Elizabeth B. Wydra, chief counsel at the Constitutional Accountability Center. “I’m not sure what they would have to gain there.”

Only five of the 11 active judges on the 11th Circuit were appointed by Democrats, and one of them — Judge Frank Hull — has already ruled against the individual mandate.

There are fewer upsides for Obama than for his eventual Republican opponent if the court decides the case this term. Republicans are so strongly opposed to the law that even the Supreme Court is unlikely to quiet their criticisms, no matter how it rules.

A court decision striking down the mandate would energize them. Already, after last week’s ruling, GOP presidential candidate Michele Bachmann claimed credit for helping build the case against the mandate.

“If the court agrees to hear the case in this term, it’s clearly going to be part of the Republican presidential campaign process,” said Julius Hobson, a senior policy adviser at Polsinelli Shughart.

“They were going to be out there talking about ‘Obamacare,’ as they call it, anyway. But this will heighten it.”

A decision upholding the mandate could help Republicans with independents, who are split on the law. Those independents who oppose the law could see the ruling as an argument to vote for a Republican who would repeal the law.

But if the mandate is upheld by the Supreme Court, which currently has five Republican-nominated justices, it would also be seen as a crucial validation of Obama’s signature law. And it could give the law a much-needed boost in public opinion.

The Obama administration has called the mandate an integral piece of the law. A threat to such an important provision would likely force the administration to discuss how to keep the rest of the law standing without it — a hypothetical they have been unwilling to discuss publicly.

Policy experts — including the insurance industry, which has the most to lose if the mandate is struck down — say there is no alternative that would be quite as effective.

The closest alternative is a collection of incentives for consumers to purchase insurance. But proposals scored by the Congressional Budget Office during the 2009 debate wouldn’t have expanded coverage as much as the mandate — a critical problem, since insurers say they’ll need healthy customers to keep premiums stable once they have to cover everyone with pre-existing conditions.

Another possible alternative is that some states could choose to enact their own mandate, similar to the Massachusetts law. The result could be a patchwork of states with requirements to buy insurance that would have varying degrees of enforcement.

When it meets in September for the first time to decide which appeals to accept, the Supreme Court will have a health reform case sitting on its desk. Only four justices have to agree to accept the case.

The Thomas More Law Center, which lost the 6th Circuit case, has already filed its appeal. The Department of Justice has until the end of this month to reply.

While the court is unlikely to have an appeal from the Department of Justice in the 11th Circuit case by then, the 11th Circuit’s ruling will weigh on the decision to accept the 6th Circuit case.

“Obviously they’re going to be aware of this ruling,” Wydra said of the 11th Circuit case.

The court will have a few options. It could agree to take the 6th Circuit case but hold off on oral arguments until the 11th and 4th circuit cases get to them. The justices could also sit on the 6th Circuit petition until they receive the 11th and 4th petitions.

Most legal experts do not expect the court to grant cert on the 6th Circuit petition alone.

Of course, the court could decide not to accept the cases at all — though experts say the chance of that outcome has greatly diminished with the 11th Circuit ruling. Or the court could slow-walk the cases until after the 2012 election to avoid any accusation of playing politics.

The high court also could delay accepting the cases until after January, in which case they could get put on the calendar for the spring or bumped until the fall term. The Department of Justice could also ask the Supreme Court for various extensions in the appeals process.

“I don’t know yet, mechanically, how quickly it will get up to the court,” said Ron Pollack, executive director of Families USA, which supports the law. But he said the 11th Circuit ruling makes it “considerably more likely” that the court will take one of the cases. “It’s inevitable, I hate to say,” he said.

Many of the groups that are helping to implement the law say it’s better to have a quick decision from the Supreme Court. Some Republican governors have pointed to the ongoing court challenges as a reason they don’t need to carry out the law.

It’s unclear what the court will do when it does review the law. If the justices stick with the partisan rulings on the health cases in the lower courts, it would suggest the mandate would be struck down in a 5-4 decision.

But now two circuit court judges have bucked that trend. Republican appointee Jeffrey Sutton upheld the law in the 6th Circuit, and Democratic appointee Frank Hull ruled against it in the 11th Circuit.

Supporters of the law say Sutton’s concurring opinion in the 6th Circuit mapped out a “conservative” justification to uphold the law. He based his decision on vast deference to Congress’s powers to craft national solutions to national problems and the unique nature of the health system — which consumers are going to enter, he concluded, whether they choose to or not.