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The Department of Justice filed a cert petition today asking the Supreme Court to review the 2-1 decision of the Court of Appeals for the 11th Circuit striking down the Affordable Care Act, providing this statement.
"The Department has consistently and successfully defended this law in several court of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional. We believe the question is appropriate for review by the Supreme Court.

"Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed.  We believe the challenges to Affordable Care Act—like the one in the 11th Circuit—will also ultimately fail and that the Supreme Court will uphold the law.

In a blog post, senior White House adviser Stephanie Cutter writes:

Unfortunately the Eleventh Circuit Court of Appeals ruled against the Affordable Care Act's individual responsibility provision. We strongly disagree with their decision and today, the Obama Administration will ask the Supreme Court to hear this case, so that we can put these challenges to rest and continue moving forward implementing the law to lower the cost of health care and make it more secure for all Americans. We hope the Supreme Court takes up the case and we are confident we will win. Here's why:
  • The Affordable Care Act, through the individual responsibility requirement, will require everyone, if they can afford it, to carry some form of health insurance since everyone at some point in time participates in the health care system, and incur costs that must be paid for. For the 83% of Americans who have coverage and who are already taking responsibility for their health care, their insurance premiums will decrease over time.  Only those who are able to pay for health insurance will be responsible for obtaining it and new tax credits and other provisions in the law will make health insurance affordable for middle class families. That’s why the Congressional Budget Office estimated that only 1 percent of all Americans would pay a penalty for not having health insurance in 2016.
  • Opponents of reform wrongly claim that Congress exceeded its authority in regulating when and how people pay for health care. Those who claim that the “individual responsibility” provision exceeds Congress’ power to regulate interstate commerce because it penalizes “inactivity” are simply wrong. People who make a decision to forego health insurance do not opt out of the health care market.  Their action is not felt by themselves alone.  Instead, when they become ill or injured and cannot pay their bills, their costs are shifted to others. Those costs – $43 billion in 2008 alone – are borne by doctors, hospitals, insured individuals, taxpayers and small businesses throughout the nation.
  • Additionally, banning insurance companies from discriminating against people with preexisting conditions helps to ensure that every American who can afford it has insurance.  We don’t let people wait until after they’ve been in a car accident to apply for auto insurance and get reimbursed, and we don’t want to do that with health care.  If we’re going to outlaw discrimination based on pre-existing conditions, people should not be allowed to game the system and raise costs on everyone else.

We know the Affordable Care Act is constitutional. We are confident the Supreme Court will agree.

Here's a link to the petition [pdf].

2:02 PM PT: In a conference call with a senior Department of Justice official, they said they chose this case to petition the court on because Justice believes it most effectively frames the issues for the court.

As for the timing of the petition, they said Justice would rather the constitutionality of the law be decided sooner rather than later so that the federal government, states, and insurance companies can move ahead with implementation of the law.


2:47 PM PT: One other thing worth noting about the conference call is that the Senior DOJ Official Speaking On Background explained that the administration's position on severability, as mentioned in previous briefs, is that if the minimum coverage provision (individual mandate) is declared unconstitutional, then the community rating (no differential premiums based on health status) and guaranteed issue (i.e., cannot deny coverage based on preexisting conditions) provisions were inextricably intertwined with it, and should be stricken as well. (Adam B)

Originally posted to Joan McCarter on Wed Sep 28, 2011 at 01:04 PM PDT.

Also republished by Daily Kos.

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