There is word today that the Obama Administration will not ask a federal appeals court to reconsider its decision last month, striking down the health reform law’s “individual mandate.” The Administration’s decision opens the door to accelerated Supreme Court review of the constitutionality of the mandate, and has all the makings of some high-stakes political poker.
A three-judge panel of the 11th Federal Circuit Court of Appeals voted 2-1 last month that the Constitution does not authorize Congress to impose the individual mandate on American citizens. That decision conflicted with another federal appeals court decision, issued weeks earlier. It is conflicts like this, between federal appeals courts, that the Supreme Court often resolves upon request.
The Administration could have asked the 11th Circuit to reconsider its decision, and if the appeals court had agreed to do so, the matter would have been heard by a larger panel of the 11th Circuit’s judges. Reconsideration would have taken several months, postponing into late 2012 or even 2013 the likelihood of Supreme Court review. Instead, the Administration has chosen to forego the request for reconsideration. While it is not tipping its hand as to next moves, it seems likely the Administration will soon petition the Supreme Court to take the case earlier rather than later. Why?
Oh to be a fly on the wall of the Oval Office! The Administration might be hedging its bet against a potential loss of the White House in 2012. If the constitutional question is not presented to and decided by the Supreme Court during President Obama’s term, a new president might kill the appeal, allowing the 11th Circuit’s decision to stand. Yet is seems unlikely the Administration is playing defense.
Nevertheless, by pushing for prompt review by the Supreme Court the Administration may be going “all in,” betting the house (at least, the White House) on its view that the mandate is constitutional. For if the Supreme Court takes up the matter in the next few months and decides, prior to next November’s elections, that the mandate is unconstitutional, Republican candidates from coast to coast will hammer home the notion that Democrats attempted to foist upon the citizenry an unlawful mandate. The political fallout could be substantial.
On the other hand, if the Supreme Court sides with the Administration, and does so prior to the election, Democrats can make similar political hay: That they tried to cure the nation’s health insurance ills, were repeatedly stalled by challenges from conservatives, but now at last the highest court in the land has affirmed the correctness of the effort.
It seems clear that a Supreme Court victory is what the Administration expects.
All in all, a fascinating political and judicial drama. Literally this has all the dramatic trappings of a compelling Hollywood yarn, although it wouldn’t hurt if we could throw in a giant transforming robot or some space aliens. Stay tuned.