The Supreme Gamble
In the past few days, I’ve talked about two different political gambles. Today I’ll talk about a third.
This week, the Obama administration opted not to appeal last month’s 11th Circuit PPACA ruling, which concluded that the individual mandate is unconstitutional. Given that Obama’s position is, obviously, that the mandate is constitutional, why not appeal the decision?
Simply put, because this forces the Supreme Court’s hand.
The PPACA is written to apply to all Americans, and therefore needs a national legal consensus on its applicability and constitutionality. But right now, we have a difference between regions. The 6th Circuit, in a 2–1 decision, upheld the mandate, while the 11th, also in a 2–1 decision, struck it down. This means that, as it stands, the mandate is legal within the states of Michigan, Ohio, Kentucky, and Tennessee, but illegal in Alabama, Georgia, and Florida.
This situation, naturally, cannot remain. The law is either constitutional in all states, or unconstitutional in all states. By leaving this contradiction in place, the Obama administration is forcing the Supreme Court to do something, and do something now. This means a decision to be issued (most likely) in the spring of 2012.
Why does Obama want this issue decided next spring, just as the election campaigns will be ramping up in force? Because this will take the issue off the table. If the Supreme Court finds the law constitutional, no longer will he have to defend the constitutionality of the law.
And even if the Supremes do not, it will almost certainly be a decision along party lines, giving Obama reason to point to the partisan nature of the Supreme Court. That may not be as strong a position, but it removes a lot of slipperiness that he is forced to deal with today in discussing the law. And it’s not as weak an argument as you might think. Witness how the public responded to the Citizens United decision. It’s not necessarily a win-lose proposition.
The Supreme Court has an out, for now. The Justices can conclude that the plaintiffs lack standing, given that the individual mandate has not yet taken effect. Congress has the opportunity to repeal that portion of the law without it ever affecting a single American, which may render that portion of the law moot.
But even if the Supremes opt for dodging the bullet, Obama can come out out ahead. If the Supreme Court says the law is no big deal, why should the rest of us freak out about it?
So it looks like the Obama administration is betting that the possible outcomes range from neutral to positive. They may be right.
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- Congress, not Progress
- Lara Croft, Cancer Raider
- Supreme Court Watch: FOIA Edition
- Supreme Court Watch: University of Texas Southwestern Medical Center v. Nassar
- Cruzin’ for a Bruzin’
- Supreme Court Watch: Association for Molecular Pathology v. Myriad Genetics, Inc.
- The Hatter Resolution
- Supreme Court Watch: McQuiggin v. Perkins
- Supreme Court Watch: Butt v. Utah