The Justice Department Wednesday to hear their appeal of the 11th Circuit鈥檚 August ruling that found the individual mandate unconstitutional. The moves increase the likelihood that the Supreme Court will take the case up in its next term, potentially ruling on the constitutionality of health law before the 2012 elections.聽Kaiser Health News is of the legal challenges to the 2010 health law.
Here鈥檚 how some bloggers handled the Obama administration decision and what they think it means for the law and for the politics of the 2012 elections.
At , Kevin Outterson is tracking amicus briefs on the health reform law challenge.
At , Ian Millhiser writes: 鈥淚t is not the least bit surprising that the Obama Administration passed up this potential opportunity to delay the case until after the next Supreme Court term. For one thing, the Administration has consistently chosen not to engage in delay tactics throughout this litigation. Most recently, DOJ refused to argue that the courts lack jurisdiction to hear the case until 2015 despite the fact that one court of appeal concluded that they do lack jurisdiction and another expressed sympathy with that view. More importantly, the Administration should be eager to get this case in front of the justices since they are overwhelmingly likely to win once the case gets there.鈥�
One blogger, however, can鈥檛 make sense of the administration鈥檚 strategy: 鈥淲hat I can鈥檛 figure out 鈥� is why O would run the risk of the mandate being struck down before the election. That would be demoralizing for the left and delegitimizing for Obama. What鈥檚 left of his first term if his signature domestic policy 鈥榓chievement鈥� ends up rubbished by SCOTUS as a violation of the Commerce Clause? I guess the thinking is that if the mandate is struck down, he can point to it as proof for liberals that they desperately need to appoint more left-wing justices to the Court and the only way to do that is to re-elect him.鈥�
Hans von Spakovsky, writing in The Heritage Foundation鈥檚 blog, writes about the National Federation of Independent Business request the Supreme Court take up the Florida case heard by the 11th Circuit: 聽鈥淭he NFIB is asking the Court to overrule this holding, since 鈥楥ongress itself deemed [the mandate] 鈥渆ssential鈥� to the Act鈥檚 new insurance regulations.鈥� Given that the 11th and 6th Circuits have issued 鈥榙irectly conflicting final judgments about the facial constitutionality of [Obamacare鈥檚] mandate,鈥� the case is one that the Court should obviously take up given its interest in eliminating conflicting opinions in the courts of appeal.鈥�
Peter Suderman, writing in Reason Magazine鈥檚 blog, says there鈥檚 still a level of uncertainty about the court: 鈥淸E]ven for the most knowledgable observers, predicting a Supreme Court ruling months in advance is mostly a guessing game. We don鈥檛 even know with absolute certainty that the Court will agree to hear the case at all, although it would be very surprising if they didn鈥檛. What this suggests, then, is that regardless of Court鈥檚 decision, the administration wants to ensure that ObamaCare in general and the mandate in specific will be major issues in the 2012 election. And that presumably means that they鈥檝e got their arguments ready and are confident they鈥檒l work.鈥�
Avik Roy, in his blog at Forbes, offers his own take on why the DOJ chose this path: 鈥淪ome had hoped that the recent decision by the Fourth Circuit to reject two Obamacare challenges, on the grounds that the parties in those lawsuits had no standing to sue, might encourage the DOJ to pursue similar arguments in an en banc petition. But it was never clear that this was a viable strategy, as a number of the other cases involve individuals who clearly do have standing.鈥�
At the , TomGoldstein writes: 鈥淒ifferent factors almost certainly had different weight for the various government lawyers involved. But I think there is a simpler and more straightforward answer. In situations like these, politics is never completely absent. But the government tends to act in its institutional interests first, and the interest of a particular Presidential Administration second. The ACA is a huge, complicated statute. It is hard to implement, a process that will take a lot of time. As a result, the government genuinely needs to know as soon as practicable whether the law in fact is constitutional in whole or in part. At least, that is very likely the strong view of the agencies that are effectively the clients of the Office of Solicitor General in this litigation.鈥�
Also in the , Lyle Denniston details the Justice Department鈥檚 Wednesday filing: 鈥溾�楾he court of appeals鈥� 鈥� decision,鈥� the government filing argued, 鈥榠s fundamentally flawed and denies Congress the broad deference it is due in enacting laws to address the Nation鈥檚 most pressing economic problems and set tax policy.鈥� Wednesday was the deadline for the Administration to file its response in the Supreme Court to an already pending case on the health care mandate 鈥� a case coming from the Sixth Circuit Court (Thomas More Law Center v. Obama, et al., docket 11-117). But, before filing that document, the U.S. Solicitor General鈥檚 office filed the government鈥檚 own petition for review of the separate decision by the Eleventh Circuit. The two appeals courts differed on the constitutionality of the insurance-purchase mandate.鈥�