Justice Dept. asks Supreme Court to review health-care law


(J. Scott Applewhite/ASSOCIATED PRESS)
September 28, 2011

The Obama administration moved aggressively Wednesday for Supreme Court review of the 2010 health-care act, making it likely a constitutional ruling on the president’s signature and most controversial domestic achievement will come in the thick of the presidential campaign.

The administration said it was confident the act would be upheld as a valid exercise of federal power, just as Social Security and the Civil Rights Act were. If the court agrees to hear the case in the term that begins Monday, it would almost certainly render its decision by the end of deliberations in June.

The administration called upon the justices to review the decision of a three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta, which is the only appeals court to say Congress exceeded its power in passing the law. The law requires almost every American to have health insurance.

“Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed,” the Justice Department said in a statement. “We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

The law, enacted when Democrats controlled both chambers of Congress, has roiled national politics and prompted calls for repeal from the Republican presidential candidates running to replace Obama.

The political consequences of whether it is better or worse for Obama’s reelection chances to have the case decided before the election have been debated with little consensus. But the administration put aside options that could have created a delay, and its petition Wednesday ensures a quicker decision by the court.

A Justice Department official authorized to speak only on background said a consensus existed within the department that there is much to do on behalf of the federal government, states and the private sector to implement the act by 2014 and that a final decision by the court was needed.

The historic split the law has provoked is evidenced by the very lawsuit at hand: It was brought by 26 objecting states.

“It represents an unprecedented challenge — involving over half the states in the nation — to an unprecedented legislative initiative,” Paul D. Clement, solicitor general under President George W. Bush, wrote in a petition to the court on behalf of the states.

The states and the National Federation of Independent Businesses, which joined the challenge, also filed petitions with the court Wednesday. They, too, want Supreme Court review of the decision, because while the panel voted 2 to 1 to strike the individual mandate, it upheld other parts of the law.

The Obama administration has won in the other appeals courts that have considered the law. In June, a divided panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati upheld the health-care law in a separate case.

Earlier this month, a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond turned down a challenge to the law brought by the Commonwealth of Virginia and others.

The administration’s petition completes the conditions that almost always guarantee Supreme Court review: a decision by a lower court that an act of Congress is unconstitutional, conflicting opinions in other courts, and an agreement by all parties that the justices need to settle the dispute.

But the court has great flexibility in deciding when and how to take cases. Also, accepting the issue does not necessarily mean the court will resolve the threshold constitutional question it is asked; it could withhold judgment until major components of the act — such as the individual mandate — go into effect in 2014.

The administration said that the court should resolve all issues and that the Atlanta court’s decision most squarely presented the relevant issues.

The two judges in the majority in that ruling — Chief Judge Joel Dubina and Circuit Judge Frank Hull — called the law’s requirement that virtually every American obtain insurance a “wholly novel and potentially unbounded assertion of congressional authority.”

They rejected the administration’s argument that such power is vested in the Constitution’s commerce clause, which gives Congress the power to regulate interstate commerce.

But the administration said the court failed to defer to Congress’s decision on the best way to deal with a national “crisis” in affordable health care. It said the mandate of minimum insurance coverage “rests upon direct, tangible and well-documented economic effects on interstate commerce.”

The administration’s petition referred repeatedly to a 2005 Supreme Court decision, Gonzalez v. Raich, upholding Congress’s power under the commerce clause to regulate the growing of marijuana for medicinal purposes. In particular, the petition cites Justice Antonin Scalia’s concurrence's concerning Congress’s ability to regulate activity affecting interstate commerce.

The decisions in the appeals courts have raised other questions for the justices to consider. One is whether the law can survive if the individual mandate is struck down as unconstitutional. The 11th Circuit said it could, but the Justice Department official expressed doubt.

And the 4th Circuit decision said the penalty imposed on those who do not obtain health insurance is actually a tax. It said the courts cannot rule on such a measure until the tax actually is levied.

The administration in its petition said it believed the justices are not barred from deciding the issue.

Staff writer N.C. Aizenmann contributed to this report.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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