Three reasons the White House is taking health reform straight to Supreme Court

Washington Post ^ | 09/27/2011 | Sarah Kliff

[SeekAndFind]

It’s now likely the U.S. (J. Scott Applewhite - AP) Supreme Court will rule on the nation’s health reform law by June 2012.

The Justice Department said Monday night it would not ask a federal appeals court in Atlanta to review its ruling against the Affordable Care Act last month. That decision, from a three-judge panel of the 11th Circuit Court of Appeals, found the mandated purchase of insurance to be unconstitutional.

If the Obama administration had asked the lower court to re-hear the case, with all 11 judges weighing in, the extra steps could have delayed a Supreme Court decision until 2013. Now, a Supreme Court case looks very likely to come by next summer, right in the thick of the 2012 presidential election.

The conventional wisdom has always been that, for the White House, a longer timeline on health reform’s legal challenges is better: it gives the law more time to be implemented and benefits to kick in. So why did it choose the faster route to the Supreme Court this time? There are at least three reasons that could make a 2012 Supreme Court decision a more compelling one for the White House:

1) The Obama administration will definitely handle the case. Delaying a ruling until 2013 came with a big risk: a Republican administration could be in power, and arguing the case. It’s pretty hard to see a President Rick Perry or Mitt Romney asking his attorney general to defend the health reform law given that both have pledged to overturn the legislation. “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,” my colleague Stephen Stromberg wrote in an excellent post making this point.

[meatloaf]

If there’s no individual mandate for the IRS to enforce, the country will be faced with a massive deficit that no amount of taxes will cover. Even the rich don’t have that much money.

[Graewoulf]

Obama”care” was robo-signed by Congress, and is therefore illegal.

Obama”care” reduces competition, and therefore is illegal by the 1890 Sherman Anti-Trust Law.

Obama”care” also is illegal according to the US Constitution.

Will THE NINE SUPREMES notice any of these three violations? I seriously doubt it.

[sodpoodle]

It’s hard to see why this would be any different from Medicare Parts B & D.

Medicare participation/payments are mandatory during working years and upon retirement participants have premiums automatically deducted from SS checks.

Contrary to conventional criticism of GWBush’s Part D; the addition of ‘drug insurance’ encourages the elderly to purchase drugs - perhaps preventing more serious complications of otherwise unmedicated/untreated disease. JMHO

[Alamo-Girl]

Thank you for sharing your insights!

[dragonblustar]

Obama still wins if SCOTUS lets the 11th Circuit ruling remain as-is, ........Also, Obama does not seem to care much if he trashes our national debt; He could default on that if/when necessary.

I agree.

[cookcounty]

"Let me get this straight, are you saying that if the Supreme Court refuses to take the case, Obamacare is at this point in time, UNCONSTITUTIONAL BY DEFAULT?

HOW SO?

The 11thh Court of Appeals has already ruled it unconstitutional. If the Supremes don't take it up, then the 11th Circuit decision stands.

[Graewoulf]

Sheriff of Nottingham Timmy Gee, Professor Enema Ben and Instructor You Lie Obama ( currently on academic leave from the Chicago School of Bureaucratic Socialism ) have ALL done their best to obey the OATH OF CHANGE which is as follows:

“I do solemnly swear to take from each, according to his ability,

and give to each, according to his need, so help me, KM* !!!

CHANGE ! CHANGE !! CHANGE !!! “

To the Cabinet, Staff, and Career Debtocrats a more specific daily mantra is required at 8 AM, District of Corruption Time. This mantra , often called “The Obama Oath”, is as follows:

” I am driven by the need to help.

I know that the wealthy people do NOT need help.

I know that the poor people DO need help.

So the sooner I can make the wealthy people poor,

The sooner I can help them.

So help me, KM* !!!

CHANGE ! CHANGE !! CHANGE !!! “

[wmfights]

The 11th Circuit decision said Vinson was only HALF RIGHT. The individual mandate was still unconstitutional, but the huge power grab of one-sixth of the US economy by the federal government could remain intact.

It's surprising how few recognize how damaging the decision of the 3 judge panel was. What they did was sever the rest of the law from the mandate. In effect what will happen in fairly short order will the bankruptcy of private insurance. At that point we will end up with single payer govt run health care.

The reason this is the logical end is people don't understand secondary consequences so they love things like "no pre-existing conditions". It sounds great, but why buy insurance until your sick if the company can not turn you down and hospitals have to treat you no matter what.

As long as the mandate is severed obama can't lose. The question will be whether the SCOTUS sides with the 3 judge panel, or the original judge that threw out the entire law. If it's the latter we will probably lose the war because it will be impossible to repeal the non-budget parts do to a Senate filibuster.

[wmfights]

The 11th Circuit decision said Vinson was only HALF RIGHT. The individual mandate was still unconstitutional, but the huge power grab of one-sixth of the US economy by the federal government could remain intact.

It's surprising how few recognize how damaging the decision of the 3 judge panel was. What they did was sever the rest of the law from the mandate. In effect what will happen in fairly short order will the bankruptcy of private insurance. At that point we will end up with single payer govt run health care.

The reason this is the logical end is people don't understand secondary consequences so they love things like "no pre-existing conditions". It sounds great, but why buy insurance until your sick if the company can not turn you down and hospitals have to treat you no matter what.

As long as the mandate is severed obama can't lose. The question will be whether the SCOTUS sides with the 3 judge panel, or the original judge that threw out the entire law. If it's the latter we will probably lose the war because it will be impossible to repeal the non-budget parts do to a Senate filibuster.

[Stosh]

Gen. Forrest,

Thanks for the always cogent, if somewhat sobering analysis.

As a hypothetical (I know the odds of it happening are slim), if one of the lefty jurists is forced to recuse or is incapacitated, and a 4/4 decision is the result of the appeal, what are the consequences of a tie, given that we have conflicting decisions in two of the inferior courts?

[nathanbedford]

Under those circumstances my understanding is that the rulings below would be left undisturbed and the circuit court rulings would apply in their geographical jurisdictions. As a practical matter, one would expect the Chief Justice to use all his persuasive powers to prevent such a split just as Chief Justice Earl Warren delayed the vote on the Brown versus Board of Education case which desegregated the schools until he could get a unanimous Court. I would also expect the Chief Justice to attempt to delay the decision until a 9th Justice could be confirmed. The pressure would be tremendous.

The justices would all be well aware that they would be leaving the country in chaos and I cannot believe that one on one side or the other would not cave to get a ruling. Again, the pressure would be absolutely tremendous and every justice would be concerned about whether the institution itself could survive.

It is fun to speculate about a country in which Obamacare applies in roughly half the states and not in the other half or applies in part of the country without the individual mandate. Under those circumstances I believe the entire plan would simply crash although to some degree it would depend on who controls Washington. Assuming the Republicans take control of all 3 needed branches, healthcare would probably be repealed and it is unlikely that the Democrats would attempt to mount a serious filibuster in the Senate. If they did, it would likely be overridden. If they were not, it is likely that the house would simply defund and a majority of the Senate would pass that law as part of the general budget and that, presumably, could not be filibustered.

If the Democrats retain either the Senate or the White House, it will test the character of the Republican majority elsewhere. There is very little in their history which gives one much confidence. So much depends on the kind of election we have the 2012.

[Stosh]

Thanks for the detailed and thoughtful reply - I pretty much always enjoy your take on matters such as these.

And even as a Yankee with the deepest of roots in the North, having spent the best years of my life in South Carolina, I can attest to a real admiration for Southerners of the traditionalist bent, and among historical personages, for your namesake in particular.

[Ken H]

IMO, Obama still wins if SCOTUS lets the 11th Circuit ruling remain as-is...

Agreed.

[Oceander]

Sorry, just occurred to me:

Thus, a person living in the area covered by the 11th Circuit would not be subject to the individual mandate

So.. if this person refused to pay the fine, could the IRS take action?

That's a good question. The short answer is, if the IRS tried to take action, the person could take them to court within the 11th Circuit and get a ruling that the IRS was not entitled to enforce the individual mandate against that person.

[ExxonPatrolUs]

Debasing currency is the goal of countries all over the world. Obama will win. He can spend as much as he wants on whatever he wants with executive orders and secret Fed bank accounts. In the end he’ll give the poor saps 100% healthcare coverage without a premium. Just like our country does with food, shelter, cell phones and walking money. He’ll come through with his promises of jobs for everyone when we’re all making shoes and Happy Meal toys for the Chinese. And we’ll eat peas for every meal.