By Sam Baker - 09/26/11 10:02 PM EDT
The Obama administration opened the door Monday for the Supreme Court to decide the constitutionally of the healthcare law before the next election.
It opted not to seek a delay in the legal process, leaving little doubt that the court will rule on President Obama’s controversial legislation just months before he faces voters.
Legal experts have said they expect the Supreme Court to rule on the mandate in the summer of 2012. If the Obama administration had wanted to try to slow down the proceedings — possibly delaying them until after the election — an “en banc” review from the 11th Circuit was seen as its best opportunity.
But the administration did not take that option Monday, and the Justice Department is now expected to appeal the 11th Circuit decision to the Supreme Court.
Greg Katsas, a partner at Jones Day who represents the mandate’s challengers, said going straight to the Supreme Court is the best move for everyone involved.
“For the good of the country, we should know sooner rather than later what the rules are going to be,” Katsas said.
Katsas represents the National Federation of Independent Business, which joined 26 state attorneys general in filing the 11th Circuit suit.
The big question now is which specific case the high court will hear.
The administration’s strategy on that front will become clearer on Wednesday — the deadline for the Justice Department to file a brief in a separate suit. The administration must respond to the Thomas More Law Center’s request for a hearing in its suit against the mandate. The law center appealed to the Supreme Court after the 6th Circuit Court of Appeals ruled that the coverage requirement is constitutional.
How the Justice Department approaches that brief will help indicate which case it wants the Supreme Court to take, Katsas said.
In addition to the 11th Circuit’s ruling against the mandate and the 6th Circuit’s ruling in favor of it, the 4th Circuit Court of Appeals dismissed two suits over the coverage requirement on procedural grounds. Although the challengers in the dismissed cases will likely appeal to the high court as well, Katsas said he doesn’t think the Obama administration wants those cases to go any further.
Especially after deciding to go straight to the Supreme Court, it seems clear that the administration wants to settle the fundamental question of whether the mandate is constitutional, Katsas said. So asking the court to deal only with procedural issues seems unlikely, and it would only buy the law a short amount of time. The mandate could be challenged again after it takes effect in 2014.
Critics say the insurance mandate is unconstitutional because it requires people to buy a specific product solely because they’re U.S. taxpayers. Congress has the power to regulate economic activity, but critics say the mandate goes a step further and compels economic activity.
The White House and its allies say that the activity in question is using healthcare — not purchasing insurance. Requiring people to buy insurance is simply a way to regulate how people pay for healthcare services, they argue.
-- This story was updated at 6:26 p.m.