The Washington Post

Unconstitutional Obamacare? Supreme Court battle is on in 2012.

The Justice Department on Monday said that it will not ask the 11th Circuit Court of Appeals to reconsider its ruling striking down a key part of President Obama’s 2010 health-care law. Given that observers widely expect the case to reach the Supreme Court, Justice’s decision is probably most significant because it clears the way for proceedings at the High Court before the 2012 election. That’s surprising — and bound to worry Obamaites, since the law isn’t particularly popular, and they presumably don’t relish the prospect of a high-profile fight about its “individual mandate” to purchase health insurance becoming a campaign issue.

On the other hand, if the goal is preservation of the policy at all costs, Justice’s decision has at least one attraction. Pretend Justice had asked the 11th Circuit to reconsider and the appeals court took its time, pushing Supreme Court review into 2013. If Obama then lost his reelection bid, it could have fallen to new a new Justice Department to defend the statute — one led by an attorney general appointed by a GOP president committed to unraveling the health-care law in every way he or she knows how. 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.

So, Obama partisans, you must consider at least two, possibly mixed results — a politically risky legal battle on the individual mandate in the middle of a presidential campaign, and added insurance that Obama administration lawyers will see the case through its final appeal. Your satisfaction depends on how much you care about the health-care law, how you think the Supreme Court will rule — and how likely you think Obama’s reelection is.

Stephen Stromberg is a Post editorial writer. He specializes in domestic policy, including energy, the environment, legal affairs and public health.

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