By Julian Pecquet and Sam Baker - 09/28/11 04:11 PM EDT
The plaintiffs in a 26-state challenge to Democrats’ healthcare reform law on Wednesday formally asked the Supreme Court to take up the case during its upcoming term.
The 26 state attorneys general announced Wednesday that they had asked the Supreme Court to hear their challenge to the law’s mandate that most people buy health insurance. The National Federation of Independent Business (NFIB), which is a party to the same suit, also appealed to the high court Wednesday.
The petitions come two days after the Obama administration let slip its final chance to delay the case. Two appeals courts have issued opposing rulings on the law’s individual mandate, increasing the likelihood that the high court will decide to weigh in.
“Our cert petition basically makes the case for the importance and appropriateness of deciding severability along with the mandate all at one time, rather than through protracted litigation in phases,” NFIB co-counsel Gregory Katsas said in a conference call with reporters.
The states also want the Supreme Court to hear their allegation that the healthcare law’s Medicaid expansion is unconstitutional. The 11th Circuit ruled against the states on that claim.
“The grave constitutional questions surrounding the ACA and its novel exercises of federal power will not subside until this Court resolves them,” the state attorneys general said in their petition. “Time is of the essence. States need to know whether they must adapt their policies to deal with the brave new world ushered in by the ACA.”
The petitions come on the same day that the Obama administration must respond to a request for a Supreme Court hearing in a separate suit over the mandate. The states said their case “presents the ideal vehicle” for resolving questions about the requirement’s constitutionality.
Most legal observers expect the Supreme Court to hear the 26-state suit.
If the court holds its ruling until the end of its term — as it often does with high-profile cases — the decision would be released in June, just months before the 2012 presidential election, and underscoring the important role the issue will play in the fall campaign.
After the economy, healthcare could be the No. 1 issue in the presidential campaign, and every Republican candidate running to replace Obama has promised to repeal it as one of his or her first actions in office.
Congress will also focus on healthcare this fall as the supercommittee considers ways to reduce deficits. Proposals to find savings in Medicare and Medicaid are sure to be discussed, though they face a high hurdle in winning approval.
Given the role healthcare plays in the economy, it can be difficult to separate the two.
A report released Tuesday by the Kaiser Family Foundation underscored that point. It found that health insurance premium costs surged 9 percent in 2011, much more so than in previous years. The higher costs come at a difficult time for many families, given a sagging economy dragged back by high unemployment and home prices that continue to drop.
Supporters of the healthcare law say they’re not worried about the prospect of a summer 2012 ruling.
“If the Supreme Court is willing to be that arrogant, to say that someone can dream up a customized legal theory to chop away at a law they don’t like, then we have bigger problems than who wins the presidential election,” said Ian Millhiser, a legal analyst at the liberal Center for American Progress.
The NFIB is a co-plaintiff in the 26-state lawsuit against the healthcare law that was filed the day the measure was enacted. A three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled last month that the law’s mandate that everyone buy health insurance is unconstitutional, while the 6th U.S. Circuit Court of Appeals in Cincinnati has upheld it; that latter decision has already been appealed to the Supreme Court by the plaintiffs in that case, the Thomas More Law Center.
The NFIB is asking the high court not only to weigh in on the law’s mandate, but also whether the entire law should fall if that provision is deemed unconstitutional. The 11th Circuit ruled against the plaintiffs on that issue and agreed with the Obama administration that the mandate is severable from the rest of the law.
“We make the case that the best vehicle for the Supreme Court to resolve all these issues is the 11th Circuit case — our case,” Katsas said.
The NFIB also said the 26 state plaintiffs are expected to file their own writ shortly, perhaps as early as today.