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The next stop for Obamacare will likely be the Supreme Court, where review and a decision on the law’s constitutionality could occur smack in the middle of the 2012 presidential campaign. The Obama administration smoothed the way to the Supreme Court by letting a crucial procedural deadline pass for seeking a rehearing by the entire 11th Circuit Court of Appeals of its three judge panel ruling striking down the Obamacare individual mandate.
Unless Attorney General Eric Holder and his highly politicized Department of Justice had a case of collective amnesia and let the deadline slip by inadvertently, one has to assume it was a calculated move by the Obama administration to embroil the Supreme Court in a hot-potato issue during the 2012 presidential campaign.
Three U.S. appeals courts have weighed in so far on Obamacare. The 11th Circuit Court panel found that the requirement imposed on individuals to purchase health insurance from a private company for the entire duration of their lives is an unconstitutional overreach of Congress’ enumerated legislative powers, including under the Commerce Clause, which “is unprecedented, lacks cognizable limits, and imperils our federalist structure.” The 6th Circuit Court of Appeals upheld the individual mandate as “a valid exercise of legislative power by Congress under the Commerce Clause.” The 4th Circuit punted, saying that it was too early to address the issue on its merits since the mandate does not come into effect until at least 2014.
Splits among appeals courts on an issue of such constitutional significance normally impel the Supreme Court to take up the matter to bring judicial finality to the legal side of the controversy. The only question had been when the constitutional issue would finally reach the Supreme Court for decision, since the court had already declined a request for accelerated consideration that would have by-passed the appeals courts altogether. Now that the government is effectively accepting the 11th Circuit Court of Appeals’ three-judge panel decision as the last word from that court in upholding the constitutional challenge brought by more than half of the states, the Supreme Court is more likely to take up the case during its 2011-12 term, which begins Monday. If the Court decides to hear arguments sometime this fall or winter, it could issue an opinion by June of 2012 as the presidential campaign season gets into full swing.
If the Obama administration had wanted to delay the case from reaching the Supreme Court until after the 2012 election, it could have filed the petition for an en banc re-hearing by the full 11th Circuit Court, which conceivably could have reversed the three judge panel if it decided to re-hear the case. True, such a reversal would have been unlikely since there is a minority of five judges appointed by Democrats on the 11-judge Circuit Court, and one of them has already ruled against the constitutionality of the individual mandate. Nevertheless, just making the request would have led to months of filings, which would have pushed the timing of any Supreme Court decision beyond the 2012 presidential election.
One might think that such delay would be in the Obama administration’s political interests. After all, Obamacare remains unpopular. News coverage during the presidential campaign on whether it is or is not constitutional will remind voters of one of the main reasons they have misgivings about Barack Obama. The administration also hopes that, if Obama is re-elected, the current 5-4 conservative majority on the Supreme Court will disappear with the departure of just one of the conservative justices during the ensuing four years, which will make it easier to prevail against the constitutional challenges to Obamacare.
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