The Justice Department said Monday night it would not ask a federal appeals court in Atlanta to review its ruling against the Affordable Care Act last month. That decision, from a three-judge panel of the 11th Circuit Court of Appeals, found the mandated purchase of insurance to be unconstitutional.
If the Obama administration had asked the lower court to re-hear the case, with all 11 judges weighing in, the extra steps could have delayed a Supreme Court decision until 2013. Now, a Supreme Court case looks very likely to come by next summer, right in the thick of the 2012 presidential election.
The conventional wisdom has always been that, for the White House, a longer timeline on health reform’s legal challenges is better: it gives the law more time to be implemented and benefits to kick in. So why did it choose the faster route to the Supreme Court this time? There are at least three reasons that could make a 2012 Supreme Court decision a more compelling one for the White House:
The Obama administration will definitely handle the case. Delaying a ruling until 2013 came with a big risk: a Republican administration could be in power, and arguing the case. It’s pretty hard to see a President Rick Perry or Mitt Romney asking his attorney general to defend the health reform law given that both have pledged to overturn the legislation. “That hypothetical Republican administration could have decided to do what the Obama Justice Department did with the Defense of Marriage Act — offer no defense of the law at all,” my colleague Stephen Stromberg wrote in an excellent post making this point. A ruling in spring 2012 means the Obama administration will be the one defending its signature legislative achievement.
The review might not have been granted— or gone against the administration. Even if the United States had asked the 11th Circuit Court of Appeals to hear the case, the court didn’t have to accept. “It’s an open question whether going en banc would have been successful,” an administration official told my colleague Robert Barnes. “It’s likely it would not have been granted.” And even if it did, that wouldn’t necessarily be good news for the Obama administration. The 11th Circuit leans conservative, with a majority of Republican-appointed judges. Asking that court to review its health reform ruling could have bolstered the case against health reform, giving the Supreme Court more case law against the Affordable Care Act to draw from in its final decision.
The move shows confidence. Asking for review of the 11th Circuit decision would have been widely interpreted as foot-dragging, the administration attempting to slow a case that’s almost inevitably headed to the Supreme Court. For the White House to proactively pursue a faster timeline makes the administration look more confident that it will prevail in court. “This confirms what I had already concluded: that the government is confident that it’s going to prevail in the Supreme Court and would like to have a decision sooner rather than later,” former acting solicitor general Walter Dellinger told Politico.