ByÂ JENNIFER HABERKORN, Politico
The Obama administration chose not to ask the 11th Circuit Court of Appeals to re-hear a pivotalÂ health reformÂ case Monday, signaling that itâ€™s going to ask the Supreme Court to decide whether PresidentÂ Barack Obamaâ€™sÂ healthÂ reform lawÂ is constitutional.
The move puts theÂ Supreme CourtÂ in the difficult position of having to decide whether to take the highly politically charged case in the middle of the presidential election.
TheÂ Justice DepartmentÂ is expected to ask the court to overturn an August decision by a panel of three judges in the 11th Circuit Court of Appeals thatÂ found the lawâ€™s requirement to buy insurance is unconstitutional. The suit was brought by 26 states, the National Federation of Independent Business, and several individuals.
Since the ruling, the Justice Department had until Monday to ask the entire 11th Circuit to review the case. Administration lawyers didnâ€™t file the paperwork by the 5 p.m. deadline, so the ruling would stand unless the Justice Department asks the Supreme Court to step in.
The petition isnâ€™t due until November, and the administration could get an extension.
Opponents of the law had expected the government to ask for the so-called en banc hearing to delay a ruling by the Supreme Court.
â€œThe president and solicitor general deserve full credit for refusing to employ delaying tactics in this pressing constitutional controversy,â€ said Randy E. Barnett, a Georgetown Law professor who is working with the plaintiffs.
But former acting Solicitor General Walter Dellinger, who has worked on briefs in support of the legislation, said the move should be read as a sign of confidence from the administration.
â€œThis confirms what I had already concluded: That the government is confident that itâ€™s going to prevail in the Supreme Court and would like to have a decision sooner rather than later,â€ Dellinger told POLITICO.
The issue of the constitutionality of the individual mandate has been widely expected to be decided by the Supreme Court. The key question has been the timing. The Justice Departmentâ€™s apparent decision to ask the Supreme Court to review the case greatly increases the chances the issue will be heard in the 2011-12 term, which begins Monday.
The Supreme Court now has several strong reasons to accept the case. The court rarely declines requests from the government to take a case, especially in situations in which a circuit court has struck down a piece of a high-profile law.
There is also a split between the appeals courts. The 6th Circuit Court of Appeals has upheld the mandate, the 11th Circuit has ruled it unconstitutional, and the 4th Circuit has ruled that a tax law prevents it from issuing a decision on the mandate until at least 2014.
â€œThe odds are pretty significant the court will take the case now,â€ said Ron Pollack, executive director of Families USA, which has filed briefs in support of the law.
But a Supreme Court ruling in the middle of a presidential election could carry serious political risks, since a decision upholding or striking the mandate has the potential to galvanize either Republicans or Democrats.
If the court accepts the case before January, it is likely to be put on the calendar to be heard in the spring. A decision would likely be postponed until June.
The 26 states and the NFIB have said they would work quickly to file briefing papers to ensure the case can move quickly.
To read more, visit:Â http://www.politico.com/news/stories/0911/64475.html#ixzz1Z78lx9PR
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