The Obama administration's quick appeal to the Supreme Court in defense of its signature healthcare law clearly displays White House confidence that it will ultimately prevail in the case, experts say. Whether that confidence is well-placed, though, remains a matter of opinion.
Yesterday, the Department of Justice and the White House announced that the government is asking the Supreme Court to take up the case from the 11th Circuit Court of Appeals, which ruled in August that the Affordable Care Act's mandate requiring all Americans to buy insurance or face a fee is unconstitutional, though could be separated from the overall law. Earlier Wednesday, the government's adversaries in the case—a coalition of 26 states as well as the National Federation of Independent Business—also filed with the high court, asking for a complete invalidation of the law. But the administration is determined the law will survive. "We know the Affordable Care Act is constitutional," White House senior adviser Stephanie Cutter blogged Wednesday. "We are confident the Supreme Court will agree."
The government could have dragged its feet in appealing to the Supreme Court—the final deadline to file was actually November, and it also could have asked for a full court review from the 11th Circuit since the case was decided by a three-judge panel (though the conservative court was unlikely to return a better verdict)—but experts say filing now displays the administration's assurance, and any delay tactics might have been exploited by Republicans as cowardly. "If you don't think you have a winning hand, then sometimes it makes sense to see if the landscape changes," says Ian Millhiser, a constitutional and judiciary analyst with the left-leaning Center for American Progress. "They clearly think, if they are going to pull the trigger now, that they stand to gain from pulling the trigger."
Tom Goldstein, the publisher of SCOTUSblog who has argued 22 cases before the Supreme Court, says filing now indicates the administration wants the case heard this term. "The technical deadline to file the petition was November, but the practical deadline if you want to get a case heard this term was much sooner," he says, adding that he believes the Supreme Court will announce sometime around Thanksgiving that it will hear the case. "The point wasn't that they had a deadline to ask the Supreme Court; they had a deadline to ask the Supreme Court if they were going to get a ruling."
Goldstein adds that the main reason for pursuing quick action is most likely a common-sense one: The government needs an answer. "Delay was just going to make it too hard as a practical matter," he says. "They just need an answer so [the Department of Health and Human Services] in particular knows whether it should be issuing regulations, and whether people should be getting ready or not."
This development means, however, that a ruling would come amid presidential election fever, a gamble for the administration since the controversial law will be a key political issue with plenty of media coverage, either way the high court rules. If the law—considered Obama's landmark accomplishment by supporters—is struck down, Republicans would probably consider it a huge, motivating win, potentially demoralizing the president's base. However, Republicans could suffer politically from taking away popular provisions of the law, like free preventive care and allowing kids to stay on parents' insurance plans until age 26. If the law is upheld, Obama will probably look stronger, but vehement opponents of the law might see that ruling as a rallying cry to once again push for congressional repeal—and to get out the vote for repeal-friendly Republicans running for Senate.
Despite the fact that a decision will probably land smack in the middle of the campaign, the administration has a good reason to hedge its bets and shoot for an answer early in 2012: President Obama's job approval ratings, which were at 40 percent Thursday, according to a daily Gallup poll. He could lose the election. "If, in fact, he's not around in 2013, who do they want running the show in terms of putting the last bit of regulations together in 2012, or even making this argument before the Supreme Court?" asks Thomas Miller, health policy expert at the center-right American Enterprise Institute. He adds that a solicitor general is duty-bound to uphold existing law, "but there's a degree of energy and cleverness that may or may not be there to the maximum if it's another administration."
There's also the possibility that a Republican administration could follow Obama's example in dealing with the Defense of Marriage Act and simply not defend the law.
Miller calls the government's confidence over the Affordable Care Act's constitutionality "braggadocio" on the part of Justice Department attorneys, something they've shown during the entire process, he says. "This legal team has mostly been overconfident ... they thought they weren't going to have any trouble in the lower courts, and it turns out they misjudged the terrain," Miller says. "Half the time, they've stubbed their toe in the district courts and the court of appeals, but they still think that going to the Supreme Court, they're going to prevail."
Center for American Progress's Millhiser disagrees. "They have every reason to be confident," he says, pointing to past Supreme Court cases he believes have set a precedent for a government victory, like Gonzales v. Raich and United States v. Comstock, both of which upheld Congress's power. "They have so many justices on this court, including the most conservative justices who've said yeah, Congress does indeed have the power to regulate markets, and that includes the national healthcare market."
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