DOJ Asks the Supreme Court to Take Up Health Care case


The Department of Justice asked the Supreme Court on Wednesday to review a lower court decision that struck down a key provision of the health care law.

Because the government is asking the Supreme Court to step in an address a major act of Congress that has divided the lower courts, the Justices are likely to take up the issue this term and decide it before the next election.

Solicitor General Donald B. Verrilli Jr told the Court that a review of the lower court decision is “plainly warranted.”

“The court of appeals has held unconstitutional a central provision of the Affordable Care Act (ACA) which represents the considered judgment of the elected Branches of Government–after years of study and deliberation–on how to address a crisis on the national health care market” Verrilli said in court briefs.”

At issue is the individual mandate, the provision of the law that requires individuals to buy health insurance by 2014 or pay a penalty. While the 11th Circuit Court of Appeals struck down the mandate, the 6th Circuit voted to uphold it.

The government argues that Congress was well within its authority to pass the law under its power to regulate interstate commerce and lay and collect taxes.

In this case, the law is being challenged by 26 States and the National Federation of Independent Business (NFIB). In briefs filed with the Court earlier in the day the States’ attorney  argued that the law “effects a dramatic expansion of federal authority that destroys the healthy balance of power between the States and the Federal government.”

The lawyer, Paul Clement, urged the Court to take up the issue “expeditiously” saying that the states “need to know whether they must adapt their policies to deal with the brave new world ushered in by the ACA”.

A senior government official said today that the government filed its brief well before the filing deadline because it was anxious for the Court to resolve the issue “sooner rather than later.”

The reasoning, the official said had to do with “policy considerations” and the government’s desire to “get on with the business of implementing the act.”

Stephen I. Vladeck, a law professor at American University Washington College of Law says the early filing on the part of the administration suggests that it “would rather play offense than defense.”

“They think the issues are framed better in this case and that they’d rather be in the position of attacking the Eleventh Circuit than defending the Sixth, ” he said.

Gregory G. Katsas, a lawyer representing the business group, the National Federation of Independent Business, said that he was pleased that the government had chosen to “promptly” seek Supreme Court review.

“We believe that a prompt resolution of the constitutionality and severability of the individual mandate is in the best interest of individuals, employers, states, and the federal government.  We are confident in the merits of our legal arguments, and we look forward to presenting them to the Supreme Court.”