The Obama administration chose not to ask the 11th Circuit Court of Appeals to re-hear a pivotal health reform case Monday, signaling that it’s going to ask the Supreme Court to decide whether President Barack Obama’s health reform law is constitutional.Drudge Report had an interesting photo accompanying the story, a shot of Obama and Justice Sonia Sotomayor. Sotomayor used to work for Obama and helped write the legal strategy that was to be used for the inevitable court challenges. There's no question that Sotomayor should recuse herself from this case, but she probably won't. Liberals don't have those kinds of scruples.
The move puts the Supreme Court in the difficult position of having to decide whether to take the highly politically charged case in the middle of the presidential election.
The Justice Department is expected to ask the court to overturn an August decision by a panel of three judges in the 11th Circuit Court of Appeals that found the law’s requirement to buy insurance is unconstitutional. The suit was brought by 26 states, the National Federation of Independent Business, and several individuals.
Since the ruling, the Justice Department had until Monday to ask the entire 11th Circuit to review the case. Administration lawyers didn’t file the paperwork by the 5 p.m. deadline, so the ruling would stand unless the Justice Department asks the Supreme Court to step in.
Before his unfortunately Weiner-tweeting escapade, former Rep. Anthony Weiner was insisting that Justice Clarence Thomas recuse himself because his wife has been an activist opposing Obamacare. Not the same at all as Sotomayor's situation, and Thomas isn't going anywhere.
I don't think there's much doubt at all that the individual mandate will be struck down (unless Justice Kennedy is having a particularly liberal day), so the real question will be if the mandate can be severed from the rest of the bill. There was no severability clause included in the bill, so if the Supremes rule on the law as written, the whole thing should be trashed.
And that decision could come right in the middle of the campaign.
UPDATE: Just another thought, the Supreme Court could refuse to take the case, and if that happened, the lower court ruling would stand and Obamacare would be declared unconstitutional. I'm sure they'll take it since there are several cases working through the courts and they'll want to consolidate all of them, but it would be something if they just let the 11th Circuit decision stand.
UPDATE 2: Some Obama partisans are shocked he didn't insist on a full hearing before the 11th Circuit which would have delayed the case possibly into 2013. Steven Stromberg thinks he knows why they didn't:
If the goal is preservation of the policy at all costs, Justice's decision has at least one attraction. Pretend Justice had asked the 11th Circuit to reconsider and the appeals court took its time, pushing Supreme Court review into 2013. If Obama then lost his reelection bid, it could have fallen to new a new Justice Department to defend the statute -- one led by an attorney general appointed by a GOP president committed to unraveling the health-care law in every way he or she knows how. 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.We had a similar situation here in California regarding Proposition 8. Even thought it was passed by the voters quite handily, neither Gov. Schwarzenegger nor Gov. Brown elected to defend it in court leaving the voters without someone to defend their decision.
So, Obama partisans, you must consider at least two, possibly mixed results -- a politically risky legal battle on the individual mandate in the middle of a presidential campaign, and added insurance that Obama administration lawyers will see the case through its final appeal. Your satisfaction depends on how much you care about the health-care law, how you think the Supreme Court will rule -- and how likely you think Obama's reelection is.