The Obama administration has decided to
forgo an appeal to the full U.S. Court of Appeals for the 11th Circuit in Atlanta of last month's lower court decision that the Affordable Care Act's mandate is unconstitutional. The decision by the administration means that the case will reach the Supreme Court next year rather than in 2013.
Given that conventional wisdom said it would be much better for President Obama to not have a Supreme Court decision on the constitutionality of the signature piece of legislation of his first term during his reelection campaign, why would they choose to speed it up? It's not entirely clear, but Sarah Kliff has some well-informed speculation. Her three reasons:
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.[...]
The review might not have been granted—or gone against the administration. Even if the United States had asked the 11th Circuit Court of Appeals to hear the case, the court didn’t have to accept.[...] The 11th Circuit leans conservative, with a majority of Republican-appointed judges. Asking that court to review its health reform ruling could have bolstered the case against health reform, giving the Supreme Court more case law against the Affordable Care Act to draw from in its final decision.
The move shows confidence. Asking for review of the 11th Circuit decision would have been widely interpreted as foot-dragging, the administration attempting to slow a case that’s almost inevitably headed to the Supreme Court. For the White House to proactively pursue a faster timeline makes the administration look more confident that it will prevail in court.
I'm not sure that the third reason is all that convincing, that the administration would be trying to play some psychological jujitsu with the Supreme Court, but it's possible. From a pure politics perspective, Rick Hasen at Election Law Blog might have nailed it.
If the Court strikes down the law, Obama makes more of an issue of a Court out of control (think FDR) during the 2012 campaign (something I suggested in this Slate piece). If the Court upholds the law, this takes some of the wind out of the argument likely to come from the Republican presidential nominee that the health care law is unconstitutional. No lose before the election. Sometimes, you can win by losing before the Roberts Court.
Whatever the reasoning behind the administration's decision, it means that the Affordable Care Act is going to loom very large in the 2012 election. That will be particularly interesting if Romney is the Republican nominee.