The key takeaway from this brief is that the White House wants the Supreme Court to hear the case for its merits and weigh in on whether the individual mandate is constitutional. It does not want the Court to dismiss the case on procedural grounds or get into issues of whether parties have a right to be bringing this case in the first place.
There would be precedent for such a move: earlier this month, the Fourth Circuit Court of Appeals dismissed a challenge to health reform on procedural issues. The judges found that that the defendants--the Commonwealth of Virginia and Liberty University--hadn’t suffered any damage under the health reform law yet. Penalties for not purchasing insurance don’t kick in until 2014, so the judges dismissed the case.
Slate’s Dahilia Lithwick speculated on the possibility that the Supreme Court could rule this way, too, in her column this morning. “If the justices opt to consider the technical question raised at the Fourth Circuit—about who has legal standing to challenge the mandate in the first place—the court could dodge the constitutional question altogether until 2015, when the first penalties will be paid,” she wrote.
On a call this afternoon, the Department of Justice let it be known that’s not what it is looking for. “Our view is that...the court is empowered to hear the merits of the case,” a senior Justice Department official told reporters. The brief filed with the Supreme Court this afternoon went even further: it said that the administration won’t even defend that position, so if the judges want to pursue procedural issues, it should “consider appointing an amicus to file a brief defending [that] position,” rather than relying on the administration to make that argument.
The plaintiffs in this case, who are challenging the health law’s constitutionality, aren’t likely to ask for procedural grounds to be considered, either. So this could be a strong push for the Supreme Court to weigh in on health reform’s constitutionality, rather than tell the parties to come back in a few years.