In this photo from 2009, "tea party" activists protest the Democratic healthcare initiative in a rally at Griffith Park in Los Angeles. The Supreme Court could rule on the law's constitutionality as soon as early next year. (Genaro Molina / Los Angeles Times )
By David G. SavageWashington Bureau
5:34 p.m. CDT, September 26, 2011
Reporting from Washington—
The Obama administration set the stage Monday for the Supreme Court to rule early next year on the constitutionality of the president’s healthcare law by declining to press for a full appeal in a lower court.
The Justice Department announced it will forgo an appeal to the full U.S. 11th Circuit Court of Appeals in Atlanta. Such an appeal to the 10-member court could have taken months and delayed a final decision from the high court until at least 2013.
In a 2-1 ruling in August, a panel of the 11th Circuit became the first appellate court to declare unconstitutional the new requirement that all Americans have health insurance.
Now, the administration can appeal directly to the Supreme Court and ask the justices to schedule the case to be heard and decided during the term that begins next week and ends in June. If the court follows that schedule, the justices will hand down a ruling on President Obama’s signature legislation just as the election campaign moves into high gear.
At issue for the court is whether Congress can use its power to “regulate commerce” to require that all Americans who have taxable income certify by 2014 that they have health insurance. If not, they must pay a tax penalty that begins at $95.
The two judges based in Atlanta concluded Congress had overstepped its power by regulating the behavior of persons who do not wish to buy insurance. This refusal to buy is not commerce, the judges said.
The administration’s lawyers say this requirement is a reasonable and necessary regulation to prevent freeloaders from taking advantage of the taxpayers. Under current law, hospitals must spend tens of billions of dollars each year to provide emergency care to persons who lack insurance or the ability to pay. The new healthcare law also requires insurers to offer coverage to persons who have preexisting medical conditions.
The ruling in Atlanta grew out of a lawsuit filed by Republican officials in 26 states and the National Federation of Independent Business. They also balked at the law’s requirement that states expand their Medicaid program of providing healthcare for low-income persons.
The business federation said it was pleased with Monday’s decision forgoing the drawn-out appeal in the lower court. “NFIB is excited that all indications point to the government going directly to the Supreme Court to hear our case and commends the administration on their decision,” said Karen Harned, executive director of the group’s legal center.
The justices may also want to consider a new issue that could delay a final ruling. This month, the U.S. 4th Circuit Court, based in Virginia, threw out a challenge to the healthcare law by citing a federal law that bars disgruntled taxpayers from going to court until they have paid the disputed tax and filed for a refund. Applying that rule, the judges said no court can rule on the constitutionality of the Affordable Care Act until after 2014, when the first taxpayer pays the penalty.
However, several other courts, including the 11th Circuit, said the penalty is not a “tax” and, therefore, is subject to challenge before it takes effect.
Source: Los Angeles Times
Similar article at: POLITICO 44
The Justice Department is expected to ask the court to overturn an August decision by a panel of three judges in the 11th Circuit Court of Appeals that found the law’s requirement to buy insurance is unconstitutional. The suit was brought by 26 states, the National Federation of Independent Business, and several individuals.
Since the ruling, the Justice Department had until Monday to ask the entire 11th Circuit to review the case. Administration lawyers didn’t file the paperwork by the 5 p.m. deadline, so the ruling would stand unless the Justice Department asks the Supreme Court to step in.
The petition isn’t due until November, and the administration could get an extension.
Opponents of the law had expected the government to ask for the so-called en banc hearing to delay a ruling by the Supreme Court.
“The president and solicitor general deserve full credit for refusing to employ delaying tactics in this pressing constitutional controversy,” said Randy E. Barnett, a Georgetown Law professor who is working with the plaintiffs.
But former acting Solicitor General Walter Dellinger, who has worked on briefs in support of the legislation, said the move should be read as a sign of confidence from the administration.
“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,” Dellinger told POLITICO.
The issue of the constitutionality of the individual mandate has been widely expected to be decided by the Supreme Court. The key question has been the timing. The Justice Department’s apparent decision to ask the Supreme Court to review the case greatly increases the chances the issue will be heard in the 2011-12 term, which begins Monday.
The Supreme Court now has several strong reasons to accept the case. The court rarely declines requests from the government to take a case, especially in situations in which a circuit court has struck down a piece of a high-profile law.
There is also a split between the appeals courts. The 6th Circuit Court of Appeals has upheld the mandate, the 11th Circuit has ruled it unconstitutional, and the 4th Circuit has ruled that a tax law prevents it from issuing a decision on the mandate until at least 2014.
“The odds are pretty significant the court will take the case now,” said Ron Pollack, executive director of Families USA, which has filed briefs in support of the law.
But a Supreme Court ruling in the middle of a presidential election could carry serious political risks, since a decision upholding or striking the mandate has the potential to galvanize either Republicans or Democrats.
If the court accepts the case before January, it is likely to be put on the calendar to be heard in the spring. A decision would likely be postponed until June.
The 26 states and the NFIB have said they would work quickly to file briefing papers to ensure the case can move quickly.
The Justice Department did not explain its decision, but there were strong reasons for it not to pursue the en banc hearing.
There are only five judges appointed by Democrats on the 11-judge circuit, and one them has already ruled to strike down the mandate. So far, many judges have ruled along the party lines of the president who nominated him or her. So it’s unlikely the government would have gotten a better response out of the full panel.
It’s also possible that the 11th Circuit wouldn’t have agreed to re-hear the case.
This article first appeared on POLITICO at 5:34 p.m. on September 26, 2011.
No comments:
Post a Comment