High court may take up health law
By Robert Barnes
Washington Post
WASHINGTON — The constitutionality of the 2010 health care law could be determined by the Supreme Court this term, with a decision coming next summer in the thick of the 2012 presidential campaign.
The Justice Department said Monday that it had decided not to ask the full US Court of Appeals for the 11th Circuit in Atlanta to take up the case. A three-member panel of the court decided 2 to 1 last month that Congress overstepped its authority in passing the Affordable Care Act, which requires virtually all Americans to obtain health insurance.
Although the department declined further comment, the logical next step for the Obama administration is to ask the justices to make what would be the final determination on the law’s fate.
Appeals courts that have considered the law are split.
In June, a divided panel of the US Court of Appeals for the Sixth Circuit in Cincinnati upheld the law in a separate case.
Earlier this month, a panel of the US Court of Appeals for the Fourth Circuit in Richmond turned down a challenge to the law brought by the Commonwealth of Virginia and others.
The timing of how to respond to the loss in the Atlanta appeals court and when to seek Supreme Court consideration has prompted considerable political speculation about President Obama’s signature domestic achievement.
The law is one of the most contentious and visible ways the president differs with his Republican challengers. A Supreme Court decision either way – that the law is a valid exercise of Congress’s power or an unconstitutional overreach – could have political effects neither side can predict.
The administration might have been able to delay a ruling on the law until after the election if it had asked for an en banc review, meaning that all the judges on the 11th Circuit would hear the case. But administration officials concluded it was time to move on.
“It’s an open question whether going en banc would have been successful,’’ said one administration official who would not agree to be named discussing the decision.
Critics of the law had demanded the administration not drag its feet in getting the case to the high court, and Monday’s decision drew rare praise.
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