The Obama administration must decide on Monday whether to ask a federal appeals court to review a challenge to his healthcare reform law or fast-track it to the Supreme Court.
Asking a federal appeals court to weigh in first would increase the likelihood, already growing, that a final decision on whether the law passes constitutional muster won't be made until after the 2012 election.
The administration has until the end of the day to ask the 11th Circuit of Appeals in Atlanta to take up a multi-state challenge to the law; a court panel last month ruled 2-1 that the law's mandate that people must buy health insurance should be struck down.
There are good reasons for the administration to wait on a direct appeal to the Supreme Court; having the full appeals court overturn its panel and uphold the individual mandate could strengthen the administration's case when it eventually does go to the Supreme Court. And delaying a high court decision until 2013 avoids a potentially embarrassing ruling against the president's signature domestic achievement on the eve of his reelection.
On the flip side, waiting until 2013 could deprive the administration of a significant pre-election win that would deflate Republican criticism of the law.
Their actions have increased the chances that a final resolution will be delayed regardless of today's decision.
Earlier this month, a panel of the Fourth Circuit Court of Appeals in Richmond, Va., dismissed a challenge against the mandate under the Anti-Injunction Act because no one can claim to have been harmed by a mandate that won't even exist until 2014. And this past Friday, a panel of the D.C. Court of Appeals, which has yet to rule, likewise peppered litigants with questions about whether the mandate could be challenged before it goes into effect.