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

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.

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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.