Decision Time for the Department of Justice on PPACA Legal

Today marks an important deadline in the ongoing
legal battle over the Patient Protection and Affordable Care Act (PPACA). The
Obama administration must decide whether it wants to directly ask the Supreme
Court to review the constitutionality of its signature health reform legislation
or whether it wants to pursue an en banc review from the full 11th
Circuit Court of Appeals to review its prior decision striking down the law’s
individual mandate requirement. The case in question is the challenge being made
by 26 states and the National Federation of Independent Businesses (NFIB). It is
the largest and highest profile challenge to the health reform law, which
has now seen three circuit courts rule in three different ways on the issue. The
Justice Department must file the necessary paperwork by close of business if it
plans to pursue the en banc review of the 11th Circuit’s

The choice the Obama administration makes will
strongly influence whether or not the Supreme Court will decide the
constitutionality of the individual mandate before the 2012 presidential
election. A petition from the Justice Department and the conflicting rulings are
strong factors for the Supreme Court justices when deciding whether the High
Court should accept a case. The Court rarely rejects requests from the federal
government to hear a case, especially when the issues involved have great
political significance and there are multiple conflicting rulings.

If the Justice Department asks the full 11th Circuit
to rule on the case instead, that court would still have to decide whether to
take the en banc review and then hear the case. These actions would
delay the inevitable petition to the Supreme Court likely by several months and
could mean the case will not be decided in 2011. If an en banc review
is called for, in all likelihood Supreme Court action would not occur until the
court’s next term, which begins in October 2012. Some suggest that pursuing this
route would be a political delay tactic by the Obama administration, since the
makeup of the 11th Circuit means it is unlikely the full panel will provide a
better ruling for the government, and in any case the losing party will
ultimately appeal to the Supreme Court.

However, the administration has plenty of reasons to
avoid the slow process of the en banc petition, and request the Supreme
Court take up the case immediately. Reasons why the Justice Department might
want to seek Supreme Court action now are that the issues surrounding the
individual mandate have been well-argued to three circuit courts with a fourth
court hearing oral arguments on the mandate last week. In addition, the
uncertainty surrounding the law continues to influence the broader economy.
Investment firms are calling
the law “arguably the biggest impediment to hiring,” and states continue to
issue complaints that they do not have adequate information to implement the law
in a timely and responsible fashion. While the Justice Department’s decision on
which legal strategy to pursue is important, the timing of a final ruling on the
mandate is left largely up to the justices, who may be cautious about weighing
in on such a high-profile, politically charged case.


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