I’m shocked — truly.
Earlier this year, the Atlanta-based federal appeals court struck down the individual mandate — the cornerstone of Obama’s health-care plan. The Justice Department had until Monday to ask the full court to reconsider that decision. I would have bet good money that it would do so to drag out the litigation at the appellate level for at least several more months. Why? The longer the case stayed at the appeals court, the less likely it would be to reach the generally conservative (read: unsympathetic) high court ahead of next year’s presidential election.
Good thing The Post’s ethics policies forbid wagers of this kind, because I would have been out quite a few bucks. The administration on Monday declined to seek full review by the Atlanta court. While it hasn’t said formally whether it will file an appeal with the Supreme Court, I can’t imagine that it will let a damaging lower court ruling stay on the books without a challenge. Then again, there is another individual mandate case — this one won by the administration before a different court of appeals — that the losing parties have asked the justices to hear. The Atlanta case, however, has been seen as the premier vehicle to take up the individual mandate, in part because the challenge involves 26 states and such legal luminaries as former Bush solicitor general Paul Clement. For a smart take on why the administration might have made this call, read my colleague Stephen Stromberg’s post on this.
I think we’ll see the administration file an appeal in the Atlanta case by a November deadline and the Court schedule oral argument for early 2012. That would mean that a decision would be handed down in June, when the Court adjourns. I’d bet on these developments — but I’m not going all in.