The Obama administration’s decision late Monday not to ask for a full court review of the August decision by two appeals court judges to strike down ObamaCare is a risky but potentially high-value play by the White House in the legal battle over health care reform.
An administration source says the decision was made largely for practical reasons. For starters, the White House didn’t think it would prevail if the 11th circuit had agreed to reconsider the case with all of its judges weighing in. Of the ten judges who would rehear the case, five are GOP appointees, and one of the Democratic appointees, Frank Hull, was on the panel that ruled against the law in August. The outlook was so bad, says the administration official, that “it’s likely [the request for a rehearing] wouldn’t have even been granted.”
A full hearing might have slowed the case up, though it’s not clear by how much. The Supreme Court can take up any one of several cases against ObamaCare in time to rule before it rises in June, regardless of whether all the cases have been heard at the appellate level.
But in the strategic sense, it appears the administration has decided that it wants the case heard at the Supreme Court before the 2012 election. Administration officials continue to say publicly and privately that they think they will win, and they show no signs of trying to slow the progress of the case. This is where a risk-reward calculation comes in.
If the Supreme Court ruled the law unconstitutional, it might motivate the Democratic base, but it would be a blow to Obama’s support among independents, and would give the GOP a very effective tool for the six to nine month final push before the election. But there are reasons to think the Supreme court won’t rule against the law.
The law’s history in the appeals courts has been bizarre. In the sixth circuit, where two GOP judges and one Democrat were expected to rule against it, the measure was upheld, thanks to a devastating defense of its constitutionality by former Antonin Scalia clerk, Jeffrey Sutton.
In the 11th circuit, Clinton appointee Frank Hull turned on the bill and ruled the mandate unconstitutional. Then last Friday in the DC circuit, the conservative stalwart, Judge Laurence Silberman, told those claiming the individual mandate was unconstitutional, “I don’t see anything in the Constitution that supports you.”
Given all that, the administration figures it can win outright in the Supreme Court, even though it remains weighted 5-4 Republican appointees vs. Democratic ones, in what would be a huge campaign victory for Obama.
But another, perhaps more likely, scenario would produce a less compelling win. Sutton’s main argument was that the attack on the law was too broad and was premature. He argued that ruling the entire law unconstitutional instead of waiting to see what specific parts of it were challenged when it was implemented would break with Supreme Court practice and be unwise. If conservatives like Scalia and Robert agree, the Supreme Court could simply leave open the question of ObamaCare’s constitutionality for a later date. Even if that happens, politically speaking, Obama may be beleaguered enough to count that as a win.