Obama Lawyers Signal Likely Supreme Court Appeal on Health Care

The Obama administration signaled it will seek U.S. Supreme Court consideration of the landmark health-care overhaul in a move that may lead to a ruling in the middle of the 2012 presidential race.

The Justice Department said yesterday it will forgo further review at the federal appeals court that declared the law unconstitutional in August. The administration has until mid-November to file an appeal with the Supreme Court.

A Supreme Court ruling striking down parts of the law would transform the campaign, forcing the candidates to refashion their messages, said William Carrick, a Democratic campaign consultant. A decision would probably come in late June, at the end of the court’s nine-month term.

“They would really send the political debate in a whole new direction,” Carrick said.

President Barack Obama is trying to resolve the legal issues on his watch, said Alex Castellanos, a Republican consultant. “This is not politics,” he said. “This is governing.”

The government had until yesterday to seek a new hearing before a larger panel of judges at the Atlanta-based appeals court. Tracy Schmaler, a Justice Department spokeswoman, said the U.S. won’t take that step and declined to say whether the government would file a Supreme Court appeal.

Seeking Court Review

The “clearest inference” is that the administration will seek high court review, said Carter Phillips, a Washington lawyer who has argued 71 Supreme Court cases and isn’t involved in the health-care litigation. And with federal appeals courts divided -- another court upheld the law and a third said courts don’t yet have authority to get involved -- Supreme Court consideration this term is “about as close to 100 percent as you can get,” said Phillips, a partner at Sidley Austin LLP.

The health law would expand coverage to an estimated 32 million Americans who lack insurance, largely through an expansion of the federal-state Medicaid program and so-called exchanges, in which consumers will be able to buy insurance. The law requires insurers to accept people with pre-existing conditions.

The challenges to the law, including a lawsuit being pressed by 26 states, say Congress exceeded its constitutional power by requiring people to either acquire insurance or pay a penalty.

A Supreme Court decision upholding the law would bolster Obama’s image, said Barbara Perry, a presidential and Supreme Court scholar at the University of Virginia’s Miller Center of Public Affairs in Charlottesville. The president would be able to point to the health-care law as an achievement that will provide coverage for tens of millions of uninsured Americans.

‘Strong Leader’

“It would help him to make the case that ‘I’m a strong leader and I was a strong leader from day one, and the court agrees with me,’” Perry said.

To win the case, Obama will need at least one of the court’s five Republican appointees to conclude that the Constitution’s commerce clause gives the federal government broad power to regulate the health-care market.

Such a ruling would “strengthen the viability of the law” because it would come from a “center-right court,” said Chris Jennings, president of Jennings Policy Strategies and formerly a senior health policy adviser to President Bill Clinton.

All eight Republicans seeking the party’s presidential nomination favor repealing the health-care law. The two candidates leading in the polls, Texas Governor Rick Perry and former Massachusetts Governor Mitt Romney, each vowed at a Sept. 12 Republican debate to block the law’s implementation without waiting for Congress to repeal it.

Menu of Options

“The divisions are so strong that many people would regard the court as simply having gotten it wrong,” said Lawrence Baum, a specialist in judicial politics who teaches at Ohio State University in Columbus. “Their unhappiness about the law probably wouldn’t abate too much.”

The high court would have a menu of options for resolving a case. A majority could uphold the law, strike down only the mandate or void other parts of the measure as well. The justices could also adopt the approach taken by one of the appeals courts and conclude that judges shouldn’t review the law until 2015, when the first penalties are assessed.

A ruling invalidating even part of the law would be a boon to the Republican nominee, said Scott Reed, a Republican strategist who managed Bob Dole’s 1996 presidential campaign. He said the Republican candidates will treat the law “like a pinata” during their nomination fight, undercutting its support among voters.

‘A Loser’

“If part is overturned, it’s going to feel like all of it was overturned, and that will further brand it as a loser,” Reed said.

Public opinion polls show a divide over the law that mirrors the broader ideological divisions in the country, said Drew Altman, president of the Kaiser Family Foundation, a nonpartisan group based in Menlo Park, California, that tracks health policy.

The foundation’s most recent monthly tracking survey, taken Sept. 7-12, found 41 percent of Americans have a favorable view of the law, while 43 percent were unfavorable. Another 16 percent of those surveyed said they didn’t know enough to say. The poll surveyed of 1,207 adults nationwide and had a margin of error of plus or minus 3 percentage points.

“Republicans intensely dislike the law,” Altman said. “Democrats favor the law and independents are stuck in the middle.”

Pre-Existing Conditions

Both the administration and challengers have said in court papers that a decision striking down the mandate would require the invalidation of provisions that make more people eligible for insurance, including the pre-existing condition rule.

The Supreme Court wouldn’t necessarily have to follow that course. In declaring the mandate unconstitutional, the 11th U.S. Circuit Court of Appeals left the rest of the law intact, including the pre-existing condition rule.

Such an outcome would be a blow to the insurance industry, which is counting on the mandate to ensure the participation of young, healthy subscribers who can offset the costs imposed by other parts of the law.

With so many possible legal outcomes, the likely political impact is murky, Baum said.

“This is not the kind of issue where it’s clear that one side would benefit rather than the other,” Baum said. “It stirs things up for both sides.”

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