The Justice Department will officially file a petition today with the Supreme Court appealing the 11th Circuit Court decision striking down the Affordable Care Act. This action virtually assures that the Supreme Court will rule on the ACA during the Presidential election, most likely at the end of June 2012.
Earlier this week, DoJ declined to seek an en banc ruling from the entire 11th Circuit on the three-judge panel’s decision against the ACA. That suggested that the Administration would take action with the Supreme Court, but this confirms it. Stephanie Cutter made the announcement at the White House blog:
There has been no shortage of lawsuits regarding the Affordable Care Act. Of course, whenever our nation is undertaking fundamental reform, legal challenges like this are nothing new. Just as challenges to the Social Security Act, the Civil Rights Act, and the Voting Rights Act all failed, challenges to health reform are failing as well. The Administration has already prevailed in cases heard in the Sixth Circuit Court of Appeals and the Fourth Circuit Court of Appeals.
Unfortunately the Eleventh Circuit Court of Appeals ruled against the Affordable Care Act’s individual responsibility provision. We strongly disagree with their decision and today, the Obama Administration will ask the Supreme Court to hear this case, so that we can put these challenges to rest and continue moving forward implementing the law to lower the cost of health care and make it more secure for all Americans. We hope the Supreme Court takes up the case and we are confident we will win.
Cutter then sets out the Administration’s legal argument in the case. As you may know, the issue is mostly the individual mandate, which detractors say is unconstitutional. Cutter, after giving some background information about the mechanics of the mandate (saying that insurance premiums will decrease over time as a result), asserts that Congress did not exceed its authority in using their power to regulate interstate commerce.
People who make a decision to forego health insurance do not opt out of the health care market. Their action is not felt by themselves alone. Instead, when they become ill or injured and cannot pay their bills, their costs are shifted to others. Those costs – $43 billion in 2008 alone – are borne by doctors, hospitals, insured individuals, taxpayers and small businesses throughout the nation.
Additionally, banning insurance companies from discriminating against people with preexisting conditions helps to ensure that every American who can afford it has insurance. We don’t let people wait until after they’ve been in a car accident to apply for auto insurance and get reimbursed, and we don’t want to do that with health care. If we’re going to outlaw discrimination based on pre-existing conditions, people should not be allowed to game the system and raise costs on everyone else.
The first argument is what will be decided at court; the second is more of a political argument.
Ian Milhiser notes that the Administration took half as long as the time alloted to file the petition. This does suggest some confidence that the Supreme Court will rule in their favor, or at least that it’s more palatable for them politically to settle the issue in June 2012 rather than after the election. This was always going to have to be decided at the nation’s highest court, so fast-tracking it there allows the President to either get support for his position, or to use the Supreme Court as a pinata and a symbol of right-wing radicalism. Either way, they have figured that works to their benefit.
It’s generally thought that the Court’s decision will come down to Justice Kennedy, though Milhiser believes that John Roberts will vote to uphold the law. Dahlia Lithwick argues that SCOTUS doesn’t really want to even adjudicate this now, but they’re not likely to have a choice, given the conflicting rulings out there. One way or another, we should know the fate of the ACA from a legal perspective within 9 months.
UPDATE: Just to build on Lithwick’s point, the Supremes could kick the can down the road by ruling only on the 4th Circuit’s contention that there is no standing for plaintiffs to sue the government yet, because the individual mandate is not functional. That would give them until at least 2015 to make a decision.