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Administration Invites Supreme Court Review of Individual Mandate

By Robyn Hagan Cain | Last updated on

The Obama Administration has doubled down on its Affordable Care Act bet, declining to seek an en banc appeal from the Eleventh Circuit Court of Appeals.

The Justice Department announced the decision on Monday, which clears the way for Supreme Court review before the 2012 presidential election.

We assumed that the controversial, individual mandate was designed to take effect in 2014 to allow the president to tout the plan during the 2012 election cycle without criticism of the inevitable glitches that arise in new programs. Now, the Court could strike the mandate before next November.

Why would President Obama take that risk? We have a few theories.

  1. Obama thinks he can win. 'Tis better to trumpet a "constitutional" individual mandate than a controversial/possibly unconstitutional individual mandate. There are plenty of great legal minds who think that the Court would uphold the individual mandate under the Commerce Clause.
  2. Obama wants to defend the mandate. Regardless of the legal status of the individual mandate, Obama could lose in 2012. Can you think of a Republican president who would actually defend Obamacare in a Supreme Court challenge? Neither can we. Much like the Obama Administration opted not to defend Don't Ask Don't Tell and the Defense of Marriage Act, the next administration could decline to defend the individual mandate. Obama may be pushing the case to the Supreme Court to ensure that his Justice Department defends the initiative.
  3. Obama is giving the people what they want. No one will be able to accuse the Obama Administration of delaying a Supreme Court review during the 2012 election debates.

Obamacare's appellate court record stands at 1-1-3. The Sixth Circuit upheld the individual mandate provision, the Eleventh Circuit struck it, and the Third, Fourth, and Ninth Circuits have dismissed individual mandate challenges for lack of standing. The D.C. Circuit Court of Appeals is the wild card; it heard oral arguments in an Obamacare challenge last Friday.

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