The ACA and Supreme Court strategy

In a strange decision, the 11th Circuit Court of Appeals recently ruled against the Affordable Care Act, rejecting the individual mandate provision. The Obama administration, naturally, said it would appeal the decision, but how it appealed matters.

Administration attorneys had the option of asking the full 11th Circuit to hear the case, which likely would have delayed consideration of the case at the U.S. Supreme Court. Instead, the Justice Department decided to skip that option and will take the appeal directly to the high court. The move makes it very likely the Supreme Court will deliver a major ruling next summer — right in the middle of a heated presidential campaign.

And why did Obama administration buck conventional wisdom and choose the most expeditious route? Sarah Kliff has a good piece on this, fleshing out the three main reasons behind the strategy.

The Obama administration will definitely handle the case. Delaying a ruling until 2013 came with a big risk: a Republican administration could be in power, and arguing the case. It’s pretty hard to see a President Rick Perry or Mitt Romney asking his attorney general to defend the health reform law given that both have pledged to overturn the legislation. […]

The review might not have been granted — or gone against the administration. Even if the United States had asked the 11th Circuit Court of Appeals to hear the case, the court didn’t have to accept…. And even if it did, that wouldn’t necessarily be good news for the Obama administration. […]

The move shows confidence. Asking for review of the 11th Circuit decision would have been widely interpreted as foot-dragging, the administration attempting to slow a case that’s almost inevitably headed to the Supreme Court. For the White House to proactively pursue a faster timeline makes the administration look more confident that it will prevail in court.

I agree with Kliff’s analysis, but I’d add just one related thought. Common sense suggests the outcome at the Supreme Court is a no-brainerof course the court majority will rule in favor of the law. If the justices stick to precedent, it won’t even be close. They’d have to take a truly radical approach to the law to conclude otherwise.

But since the Roberts Court is quite capable of radicalism, the Obama administration has to consider the possibility in a political context. And next summer, the president and his team will either be able to say, “See? Republicans are wrong, the law passes muster, and it’s time to finish implementation and bring health care access to 30 million people who don’t already have it,” or they’ll say, “See? The far-right takeover of the judiciary is standing between the American people and the services they need. Re-elect me to help put things right.”

Either way, it looks like the stage is set.