By Julian Pecquet, The Hill, September 28, 2011
The plaintiffs in a multi-state challenge to Democrats' healthcare reform law on Wednesday formally asked the Supreme Court to take up the case during its upcoming term.
The petition for certiorari comes two days after the Obama administration let slip its final chance to delay the case. Two appeals courts have issued opposing rulings on the law's individual mandate, increasing the likelihood that the high court will decide to weigh in.
The National Federation of Independent Business (NFIB), one of the plaintiffs, had praised the Obama administration for not delaying a challenge to the Supreme Court. In explaining Wednesday's petition, they pointed to the urgency of getting a final legal decision from the high court on President Obama's signature legislative achievement.
"While the survival of the new healthcare law remains an open question, small businesses and individuals will continue to face uncertainty and trepidation, hesitant to hire or expand," Karen Harned, executive director of the Small Business Legal Center at the NFIB, said in a statement. "In filing our petition today, we are attempting to impress upon the court the urgency of this issue."
The suit involving the NFIB is one of three major challenges working their way through the legal system. All of the relevant petitions will be filed within the next several weeks, legal observers said, which means, assuming the Supreme Court takes the case, that oral arguments would happen in the first few months of next year.
If the court holds on to its ruling until the end of its term — as it often does with high-profile cases — the decision would be released in June, just months before the 2012 presidential election. This underscores the role healthcare will play in deciding who will occupy the White House for the following four years.
After the economy, healthcare might be the No. 1 issue in the presidential campaign, and every Republican candidate running to replace Obama has promised to repeal it as one of his or her first actions in office.
Congress will also focus on healthcare this fall as a deficit "supercommittee" considers ways to reduce deficits. Proposals to find savings in Medicare and Medicaid are sure to be discussed, though they face a high hurdle in winning approval.
Given the role healthcare plays in the economy, it can be difficult to separate the two.
A report released Tuesday by the Kaiser Family Foundation underlined that point. It found health insurance premium costs surged 9 percent in 2011, much more so than in previous years. The higher costs come at a difficult time for many families, given a sagging economy dragged back by high unemployment and home prices that continue to drop.
Supporters of the healthcare law say they’re not worried about the prospect of a summer 2012 ruling. “If the Supreme Court is willing to be that arrogant, to say that someone can dream up a customized legal theory to chop away at a law they don’t like, then we have bigger problems than who wins the presidential election,” said Ian Millhiser, a legal analyst at the liberal Center for American Progress.
The NFIB is a co-plaintiff in the 26-state lawsuit against the healthcare law that was filed the day the measure was enacted. A three-judge panel of the 11th Circuit Court of Appeals in Atlanta ruled last month that the law's mandate that everyone buy insurance is unconstitutional, while the 6th Circuit in Cincinnati has upheld it; that latter decision has already been appealed to the Supreme Court by the plaintiffs in that case, the Thomas More Law Center.
On Monday, the Department of Justice let slip its last chance to appeal the 11th Circuit's decision to the whole court, which could have delayed the Supreme Court from getting involved until after the 2012 election. Instead, the high court is now expected to issue a ruling by next June.
The NFIB asks the High Court not only to weigh in on the law's mandate, but also whether the entire law should fall if that provision is found to be unconstitutional. The 11th Circuit ruled against the plaintiffs on that issue and agreed with the Obama administration that the mandate is severable from the rest of the law.
"Our cert petition basically makes the case for the importance and appropriateness of deciding severability along with the mandate all at one time rather than through protracted litigation in phases," NFIB co-counsel Gregory Katsas said in a conference call with reporters. "We make the case that the best vehicle for the Supreme Court to resolve all these issues is the 11th Circuit case - our case."
The NFIB also said the 26 state plaintiffs are expected to file their own writ shortly, perhaps as early as today.