Administration Decision Clears the Way For a Summer 2012 Supreme Court Ruling on ObamaCare's Individual Mandate


It looks likely the Supreme Court will rule on ObamaCare's individual mandate before the next election. Via Politico:  

The Obama administration chose not to ask the 11th Circuit Court of Appeals to re-hear a pivotal health reform case Monday, signaling that it's going to ask the Supreme Court to decide whether President Barack Obama's health reform law is constitutional.

The move puts the Supreme Court in the difficult position of having to decide whether to take the highly politically charged case in the middle of the presidential election.

The Justice Department is expected to ask the court to overturn an August decision by a panel of three judges in the 11th Circuit Court of Appeals that found the law's requirement to buy insurance is unconstitutional. The suit was brought by 26 states, the National Federation of Independent Business, and several individuals.

Since the ruling, the Justice Department had until Monday to ask the entire 11th Circuit to review the case. Administration lawyers didn't file the paperwork by the 5 p.m. deadline, so the ruling would stand unless the Justice Department asks the Supreme Court to step in.

A number of observers had expected that the Obama administration would ask for the 11th Circuit to re-hear the case in order to delay a ruling by the Supreme Court until after the election. But it looks like they wanted to get it over with, and highlight the Court's ruling, whatever it turns out to be.  

Does this suggest that the administration is confident that it will win when the Court rules on the mandate? Perhaps. Opponents of the mandate have always faced an uphill battle, and while the case against the requirement has probably gotten stronger as various courts have ruled in its favor—remember, even critics originally expected challengers to have virtually no chance at all—it's probably still true that the odds favor the administration. 

But even for the most knowledgable observers, predicting a Supreme Court ruling months in advance is mostly a guessing game. We don't 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't. 

What this suggests, then, is that regardless of Court's 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've got their arguments ready and are confident they'll work. If the mandate is upheld, Obama will claim constitutional victory, and argue that Republicans pursued a frivolous challenge in service of political gain. If not, he'll presumably argue that the challenge itself represented a partisan attack by political foes who aren't interested in fixing the health care system and that America's court system has become hopelessly biased by an extremist conservative judiciary that's in the thrall of the Republican party. 

To some extent, ObamaCare would've become a major campaign issue anyway. But with a definitive ruling on the mandate now likely next summer, it's virtually guaranteed that the law, and the Court's decision to either uphold the mandate or strike it down, will become major election-season battles.

It's an odd decision in some respects. A Supreme Court decision in the administration's favor could help them make the case for the law. But given the mandate's deep unpopularity, it also might provoke a backlash. Regardless, a favorable decision is in no way a sure thing.

More to the point, the White House hasn't been terribly successful defending its most significant legislative achievement so far. Perhaps the administration is simply hoping this will play well with a base it needs to motivate in order to win. But ObamaCare's base isn't all that big:'s poll aggregate reports that only 38 percent of the public currently support the law. But for whatever reason, the administration seems to have decided that it wants to make the case for ObamaCare yet again. 

NEXT: What Perry Should Have Said to Bachmann: Taxing Illegals Should Be Illegal

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  1. Seems like bad politics to put that unpopular stinker of a law out on point for your re-election. But what do I know? Obama has experts and paid consultants to tell him what to think.

    1. I would think they would want it to lose. It would eliminate a horrible unpopular law. And it would allow them to energize their base to do something about the evil Supreme Court.

      If it goes the other way, people are going to be very angry that there is apparently no limit of the federal power to coerce people. They are better off losing. And I think they know that.

      1. Do you think a Republican candidate would turn repealing Obamacare (if upheld as constitutional) into a major platform of their candidacy?

        1. Yes I do. As long as Obamacare exists, the Democrats own and will get blamed for every ill in the health care sector. They is why they were suicidally stupid to pass it with no Republican support.

          1. If Romney wasn’t a frontrunner, I’d be more inclined to agree. I think it’s just partisan politics. The Rs want the R health care plan, not the Ds plan.

            1. Most people don’t think that deeply. The bottom-line is that the Democrats got what they wanted on health care not the Republicans. They own health care now. And are getting blamed for everything that goes wrong fairly or unfairly.

        2. Do you think a Republican candidate would turn repealing Obamacare (if upheld as constitutional) into a major platform of their candidacy?

          During the Republican Primary debates several prospective GOP candidates have already promised they would.

      2. There isn’t…well shouldn’t be…. a limit to federal power. We need the latitude to fix the problems that you Republicans have inflicted upon this nation and its people. Get ready…once the oldest bloc of Republican voters dies off we’ll get everything we want.

        1. Um…what?

          What are those problems that only Republicans inflicted upon the nation? Provide details and show your work.

        2. Has to be a spoof.

          1. Yes, it must be a spoof but with Tony it’s really hard to be sure.

        3. once the oldest bloc of Republican voters dies off we’ll get everything we want

          The Middle Ages?

          (I say this only because the straight line was too good. I do not endorse the Republicans. I do not endorse the idea that Reason commenters are Republicans. And, I suspect this is a spoof of a spoof of Tony, who is made up simply to draw the fire of Reason commenters.)

      3. Yeah, but nothing about him to date makes me think he is that smart, or risk taking.

      4. “”I would think they would want it to lose. It would eliminate a horrible unpopular law.””

        I don’t think they want to lose. But I agree that a win might cause a backlash on the Ds in 2012.

    2. Those “top men” haven’t exactly been hitting home runs lately. It will be interesting either way.

      Potentially a lose-lose situation. A Supreme Court win could rally the ‘pubs, pushing for a repeal after the elections – provided they win all three houses. A loss just makes you look weak…

    3. I am the smartest man in any room, I tell others what to think.

  2. “But given the mandate’s deep unpopularity…”
    the pre-existing & coverage for teh [KIDZ] till 26 will prove excellent campaign issues for the election

    1. “the pre-existing & coverage for teh [KIDZ] till 26 will prove excellent campaign issues for the election”

      Because they don’t cost anything, right?

      1. 26 is NOT a kid! If you can be drafted to die for your country, or sign a contract of your own free will, you are not a kid.

    2. that’s soo true o2. gonna take it to the voterz !

  3. And of course, it’s the ‘free market’ that causes:
    “Survey: Health insurance costs surged in 2011”…..109D85.DTL

  4. I think the mandate is clearly unconstitutional even under the precedent of ever-expanding government. So why is it an uphill battle? I get that many judges and justices are willing to rubberstamp most expansions of federal power, but I don’t think the current Supreme Court will go for it.

    1. It all comes down to Justice Kennedy, I think.

      1. So let’s hope he stays well!

  5. I wonder if there is a strategy to not appealing and letting the 11th circuit decision stand.

    I cant work it out though, but I cant think like an Obamacrat.

    1. I don’t think they’re the master strategists we all made them out to be.

      1. Should my follow on comment have Homer spinning Shemp like on the kitchen floor……?

    2. The law can’t work without national coverage, anyway.

      1. Yes it will be interesting to see what happens if the SCOTUS finds the mandate unconstitutional but finds severability (e.g. the unconstitutional part can be severed leaving the rest of the law intact).

        (Guaranteed issue + community rating) -individual mandate = death spiral!!

        1. Death spiral -> Single Payer

          Single Payer + U.S. Politics -> Government fiscal collapse

          Single Payer + Broke Government -> No payer -> increased mortality, under the table health care.

          1. Single Payer + Broke Government -> No payer ->

            Broke Government -> Doctors go back to taking cash

  6. 38 percent of the public currently support the law

    The 38 percent who have not *actually read the legislation*.

    1. Congress isn’t nearly that large.

  7. I understand why Obama didn’t push this past the election. He’s already lying about “secretaries paying higher tax rates than their bosses”, “bridges that need to be repaired (that don’t)”, “Green jobs (that don’t exist)” and a variety of other whoppers that simply don’t stand up to even the simplest of scrutiny.

    He is going to beat the Obamacare drum like a rented mule during the election, and we’re going to hear breathless stories of cancer patients who finally were able to get treatment (which will be a half truth at best), younger college kids who can now stay under mom and dads insurance, and more uninsured getting insurance (which if you read this from Instapundit shows that the uninsured issue is overblown).

    He’s going to use the SCOTUS decision -win or lose- as a major campaign theme. If SCOTUS rules in favor, natch- it shows that the wise justices are supporting him. If they rule against, he’s going to argue that he needs to be re-elected to appoint less conservative judges.

    It’s a win-win for President Not My Fault.

    1. Since he’s going to lose huge mostly because of the economy, I think that’s a foolish strategy.

      1. The economy and his own incompetence. I think if he put forth any sense of competence, the public might take him as the devil they know. But he fails even at that low bar.

      2. I think that’s a foolish strategy.

        You may be right, but what else is he going to run on? He’s beating the class warfare drum as loud as he can right now and people aren’t really buying it as much anymore. He’s going to rely on another class warfare issue to fire up his base, and what better than “the boss gets great healthcare while his secretary’s son lost his insurance and got cancer and now the secretary lost her job to take care of her son all because he couldn’t keep his healthcare”.

        There isn’t much else for him to run on, and his only out is to play up the populist rich man/poor man divide in the country. Healthcare is just a conduit in which to argue more strawmen ad infinitum.

        1. All he can run on now is how scary dangerous the Republicans are in power. Old people dying, corporations incorporating, mass hysteria, dogs and cats living together.

          1. That’s why he wants the SCOTUS decision before the election. Anything to distract voters from his abysmal economic record will be a win, even if SCOTUS strikes down the law, for the reasons I mentioned above.

            The more people talk about health care and insurance mandates and evil insurance company profits the less they talk about how horribly Obama has mismanaged the country.

            1. “” Anything to distract voters from his abysmal economic record…”

              I don’t think that’s possible. Economics are felt daily by everyone to some degree or another.

            2. I wouldn’t bet against a narrative that went something like:

              “Obama has mismanaged the country. Exhibit A: he wasted most of a year passing that healthcare law that just got struck down, rather than doing something useful.”

              1. “Obama has mismanaged the country. Exhibit A: he wasted most of a year passing that healthcare law that just got struck down, rather than doing something useful.”

                Inevitable rebuttal:
                “The Bush tax cuts that just make those greedy fatty cats more richer and you poorer are more important to Republicans than helping get health insurance to save this poor five year old from Cancer. Republicans care more about making rich people richer than disease ridden children who are dying because the rich fatty cats won’t give up their yachts to save them. Who do you support, rich yacht people or disease ridden children?”

                1. They have a fundamental problem doing that because it’s easily rebutted–the tax cuts you kept in place not once but twice?

                  The tax cuts part, that is. The rest they’ll do, as usual.

        2. There isn’t much else for him to run on, and his only out is to play up the populist rich man/poor man divide in the country

          He could run on flushing billions of dollars into the Stimulus/Green Jobs hole, how he can put your name on a list and have you assassinated without trial, that he has found a secret passage in the Constitution that says he does not even need to inform Congress that he has committed military forces overseas, and that he sells weapons to Mexican drug cartels that are used in the murder of Mexican and American citizens.

          That would be a fun election.

  8. But even for the most knowledgable observers, predicting a Supreme Court ruling months in advance is mostly a guessing game.

    Everyone knows that all this build up and hype will come down to the decision of a single man: Anthony Kennedy/

  9. See, I think this is a lose-lose for Obama. I’m amazed they didn’t try to delay the SCOTUS decision.

    (1) SCOTUS decision upholding ObamaCare drops on June 30, 2012. Republicans go crazy, are now extra energized to elect lots of Repubs to repeal.

    (2) SCOTUS decision striking (parts of) ObamaCare drops on June 30, 2012. Sitting Presidents run on their records, and about the only thing Obama can point to just got gutted.

    1. I agree. Yet another political misstep by the most politically inept administration in quite some time.

    2. Not only that, if SCOTUS guts his signature bill, he can’t even really blame the Republicans. And I think attacking SCOTUS is likely to Not Play Well with most voters.

      Running on “elect me, so I can appoint more Justices” is likely to help the Repub at least as much as it helps him.

      There is another risk lurking out there for him. If Kagan doesn’t recuse herself, there is a very good case to be made that she is violating judicial ethics. That is a nice attack point for his Republican opponent – “Look at this – the kind of judges Obama appoints are unethical when it comes to pushing their partisan agenda!”

      1. Keagan is a big issue. And they are worried about it. That is why liberals all of the sudden became concerned that Thomas’ wife has a job. They are trying to throw up as much mud as possible to obscure the issue. And they are building a narrative to tell themselves if they lose; we only lost because of the evil and corrupt Justice Thomas wouldn’t recuse himself. It really is all about rationalization for these people.

    3. Actually, there is one reason Obama might want this decision before the election: if he delays the decision and then loses the election, the Republican president can drop the appeals to the anti-Obamacare rulings on the grounds that he thinks it’s unconstitutional. The liberals won’t have any grounds to complain after what BO pulled re: DADT.

      I have a feeling BO is more concerned with his “legacy” than with minor political considerations.

      1. I don’t see that at all. A smart politician (which Obama is, if nothing else) would be able to use any outcome to their benefit. Letting the SCOTUS rule on this during the election would give him something with which to rally the left. Quite frankly, he needs all the help he can get on this score.

  10. The mandate is a direct assault on not just my property, but by person. The mandate amounts to slavery. If the supreme court somehow does not find fault with the mandate, and the mandate is enforced, I will have to consider taking my own defensive action at all potential costs.

  11. This is probably a strategic political maneuver on the part of the administration. By gambling on mid-election ruling, Obama might be buying himself time to capitalize on whatever the court decides. If they rule in his favor, he can claim it a success. If they rule against him he can fire up the left by calling for a more radical solution. Obama has had questionable success as a leader, but his political instincts should not be underestimated.

  12. This is a lose lose for Obama.

    If the law is constitutional, then it further enrages the opposition. Also, considering that the law itself enjoys a majority of people opposing it, it gives swing voters a reason to vote him out.

    If the law is constitutional, then the singular legislative accomplishment by this administration would have been a law found unconstitutional by the US Supreme Court.

    Bad news either way. If they really think that getting this law out in the public eye again is somehow good for them, they really are a punch of blind, know nothing zealots.

    1. I think you may be over-estimating the level of opposition to healthcare reform. Once you remove the individual mandate, there is very little for people to complain about in this law. For that perspective, it looks to me like win-win.

      1. True, but take out the individual mandate, and the rest of the bill collapses on itself.

        The energy against O-care is pretty strong on the partisans of the right.

        And the squishy middle comprises some of the 60 or so percent that doesn’t support the bill.

        Putting this law up for discussion again is no way a win win for Obama. If that’s what they’re thinking, it’s a terrible miscalculation.

  13. New government authority, loosely rationalized, hasn’t been much of a problem for SCOTUS.

  14. Part of the White House thinking on this may be desperation over what they now realize is the unintended negative impact the law has had on hiring. They may be thinking that a Supreme Court ruling striking down the mandate will spur job creation and prop up the stock market just in time to save the president from electoral defeat.

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