WASHINGTON — Obama administration lawyers face a decision by Monday that carries a high political risk and will probably determine whether the Supreme Court decides on the constitutionality of the health care law before next year's presidential election.
The Justice Department could ask the full 11th U.S. Circuit Court of Appeals in Atlanta to reconsider a 2-1 decision in August that declared the law's mandate that all Americans must have health insurance unconstitutional. But seeking the full court review could take weeks, or even months, and probably push back a Supreme Court ruling until 2013.
Or government lawyers could opt to skip the full review in the lower court and appeal directly to the Supreme Court this fall. That in turn will probably lead to a constitutional ruling on President Barack Obama's health care law by next summer.
Under the appeals court's rules, the Justice Department must notify the 11th Circuit by Monday whether it will seek a full court review. In recent weeks, lawyers on both sides of the case have been speculating on whether Obama's legal team is anxious to get the health care dispute before the Supreme Court soon, even if it means risking an embarrassing defeat for the president as he seeks re-election.
"Everyone is waiting to see what they do Monday," said Karen Harned, a lawyer for the National Federation of Independent Business. "For the Supreme Court, this is only a question of when they will decide it. And we are hoping it will be decided in the next term."
The fate of Obama's health care reform law figures to be at the center of next year's presidential race. Republicans have been running on a promise to "repeal Obamacare." If the Supreme Court were to strike down Obama's signature law as an unconstitutional overreach by the president and a Democratic Congress, it could deal a damaging blow to the president's campaign for re-election.
However, if the justices were to uphold the law as a reasonable regulation of the nation's health insurance market, their decision would give a powerful endorsement to Obama's crusade for health care reform just when he most needs it. A pro-Obama ruling by the Roberts court would also badly undercut claims by "tea party" activists who contend federal regulation of health care is outside the bounds of the U.S. Constitution.
"This is hugely important, and everybody knows it," said D.C. lawyer Michael Carvin, who is working on the business federation's challenge to the law. The outcome of the court case "will have profound significance" not only on health care but on the relationship between the government and citizens, he said.
The business federation joined a broad lawsuit filed in Florida along with Republican governors and state attorneys from 26 states. They sought a ruling striking down the entire healthcare reform law. In August, they won a major but partial victory when the appeals court panel ruled Congress went too far when it required individuals to buy health insurance or pay a tax penalty. In June, however, the 6th U.S. Circuit Court in Cincinnati upheld the law in a 2-1 decision. Lawyers for the Thomas More Law Center in Michigan have asked the Supreme Court to review that decision. While the justices could agree to hear the Thomas More case, most lawyers say they doubt the court will take up the issue until the Justice Department weighs in.
The justices will gather for the first time on Monday morning to discuss and vote on the hundreds of appeal petitions that arrived over the summer.