All in: DOJ appeals ObamaCare ruling to Supreme Court

Here’s the DOJ press release. It’s a comfort to know that we’re now just nine months away from our super-president, Anthony Kennedy, telling us whether this thing is illegal or not.

The administration seems convinced that proceedings before the court will play out in its favor — with a speedy vindication by the high court and a chance to settle all of the uncertainties so the law can finally move forward…

A quick ruling would give more confidence to businesses, the insurance industry and consumers that they’ll know what to expect with the law, the official said — citing recent findings that at least 1 million young adults ages 19 to 26 have already gained coverage through a provision that lets them stay on their parents’ insurance.

And by going to the Supreme Court now, the Obama administration addresses a painful practical reality: A second Obama term is no longer as safe a bet as it was a few months ago. So if the Supreme Court doesn’t take up the health reform law this coming year, it may get the case with a Republican in the White House — and a Department of Justice that doesn’t lift a finger to defend the law in court

There’s no guarantee that the court will agree to hear the case — or issue a ruling quickly. If the justices want to avoid ruling during an election season, there are ways they can do it; they could deny certiorari, or they could punt, accepting the argument — as one lower court did — that it’s premature to rule on key provisions of the law until they take effect in 2014.

Yes, granted, the Court could delay a decision, but all the hallmarks are there for them to take it up soon. Both sides have filed petitions for cert (ObamaCare opponents filed theirs before the DOJ did this morning) and there’s a circuit split on whether the mandate is constitutional so the Supremes will want to resolve that ASAP. I think the boldfaced part is key too in why Obama wants to deal with this now: A Justice Department run by Rick Perry or Mitt Romney wouldn’t be required to defend ObamaCare before the Court. See this old post about Dickerson v. United States, a case involving Miranda rights where Clinton’s DOJ ended up taking the side of a criminal defendant and refused to defend a law that Congress had passed governing interrogations on grounds that it was unconstitutional. A Republican DOJ could do the same thing knowing that the Court could/would then appoint a third party to defend ObamaCare, which would get the White House off the hook with the conservative base.

According to Reid Wilson at National Journal, Democratic strategists are “flummoxed” that Obama would push for review of the law now. Really? Notwithstanding the point above about wanting the DOJ to defend the law as vigorously as possible? There may also be a deep political game being played here in which the White House is hoping that renewed attention to the mandate will hurt Romney’s chances in the primary. He’s the Republican who polls best against Obama head to head but by forcing a Supreme Court battle now, with oral arguments presumably to held sometime this fall — in the midst of the primary season — the White House can tilt the national debate towards Romney’s biggest primary liability. I don’t know if they’re that Machiavellian, but … yeah, they’re that Machiavellian.

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David Strom 8:41 PM on January 30, 2023