- The Washington Times
Wednesday, September 28, 2011

Showing confidence in its legal case, the Obama administration Wednesday unexpectedly asked the Supreme Court for an expedited hearing of the sole appeals court ruling that found the centerpiece of President Obama’s sweeping health care law to be unconstitutional.

The Justice Department’s request makes it likely that the high court will decide the case before it goes on summer recess next year, ending speculation over whether Mr. Obama would seek to end the legal wars over his signature legislative achievement before he runs for re-election the following November.

Senior administration officials, briefing reporters on the condition of anonymity, said the White House wants the court to end uncertainties about the new law as soon as possible, as states, insurers and health care providers work on implementing its provisions.

White House spokeswoman Stephanie Cutter expressed certainty that the court would side with the administration on two key questions: whether Congress overstepped its constitutional authority by requiring individuals to purchase health insurance and whether the rest of the law can stand without the mandate.

“Whenever our nation is undertaking fundamental reform, legal challenges like this are nothing new,” she said. “Just as challenges to the Social Security Act, the Civil Rights Act, and the Voting Rights Act all failed, challenges to health reform are failing as well.”

The administration gave a hint of its intention Monday, when it declined to ask the 11th Circuit Court of Appeals to rehear a case against the Affordable Care Act brought by 26 states, the National Federation of Independent Businesses and some individuals. Last month, a three-judge panel struck down the individual mandate but allowed the rest of the law to stand, making it the only court so far to strike down the mandate on its merits.

Both the administration and the plaintiffs agree on something: Out of all five appellate decisions issued so far on the health care law, the ruling by the 11th Circuit offers the best vehicle for the Supreme Court to rule on the mandate and its so-called severability from the rest of the law.

They also agree that the individual mandate is essential to implementing the rest of the law, which requires states to set up insurance exchanges and enacts new regulations on insurance companies, among other things.

Administration officials said the individual mandate is closely intertwined with other aspects of the health care law, especially new requirements that insurers cannot withhold coverage or charge premiums based on the health of a patient.

“We’ve taken the position that the minimum coverage provision is essential,” said one official, adding, “Without it, they send insurance premiums into a spiral because without minimum coverage people, in theory at least, could buy insurance on their way to the hospital.”

The challengers are hoping the Supreme Court justices will agree with the appeals court that the mandate is unconstitutional, but depart from the ruling by throwing out the entire law. Earlier in the day, the NFIB also sent a petition of certiorari to the Supreme Court, asking it to hear the case.

“The 11th Circuit ruling confirmed NFIB’s view that the individual mandate in the health-care law is unconstitutional, said Karen Harned, executive director of NFIB’s Small Business Legal Center. “It is now imperative that the Supreme Court rule on whether the entire law can stand without the mandate.”

• Paige Winfield Cunningham can be reached at pcunningham@washingtontimes.com.

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