WSJ: Likely Timing of Health Reform Lawsuit

Election Looms in Health-Law Review

By JESS BRAVIN

The Supreme Court is likely to decide by January whether a ruling on the constitutionality of the Obama administration’s health law will come before or after the November 2012 election.

A federal appeals court in Atlanta struck down last week the law’s requirement for most Americans to carry health insurance. It conflicted with another appellate ruling upholding the law, and makes it a virtual certainty the Supreme Court will step in to resolve the dispute.

What isn’t certain is whether a high court decision would come before the end of its 2011-12 term next June. If the justices agree by January to hear an appeal, arguments likely will occur in March or April, with a decision before July.

Under normal practice, any case accepted after January gets kicked into the next term. That would mean the resolution would come after voters decide whether President Barack Obama, the health-care overhaul’s champion, deserves a second term.

Bradley Joondeph, a Santa Clara University law professor, said an early decision on the Patient Protection and Affordable Care Act, derided by opponents as "ObamaCare," could benefit Republicans. "If the court upholds the law, the Republican base gets energized four months before the election," he said. "If it gets struck down, well, there go the guts of the centerpiece of Obama’s domestic agenda."

The timing is also important to state governments and companies, which want to know whether they should go ahead planning for the law’s central provisions to take effect in 2014.

While some conservatives have called on the court to fast-track the case, Supreme Court justices prefer not to be seen as political actors, and are unlikely to deviate from their normal procedures in order to time a decision before or after an election.

In addition, two appellate courts have yet to issue rulings on challenges to the health law. One of those challenges, at the U.S. Court of Appeals for the District of Columbia Circuit, is still awaiting arguments, set for Sept. 23, and the timing of its decision is uncertain.

Some parties to the case say the high court needn’t wait because the issues have already been thoroughly reviewed by lower courts. Several federal judges have written lengthy rulings saying the health law’s insurance mandate properly draws on Congress’s power to regulate interstate commerce. Other judges have said Congress overstepped its bounds.

Earlier this year, the justices turned down a request for expedited review from Virginia Attorney General Ken Cuccinelli, who brought one of the challenges now pending in an appellate court.

In June, the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit upheld the law by a 2-1 vote. The loser in the Sixth Circuit case, the Thomas More Law Center, a conservative advocacy group in Ann Arbor, Mich., already has filed a petition asking for Supreme Court review.

One factor that could sway the timing is the legal strategy of the Obama administration, which lost Friday’s 2-1 ruling by a panel of judges at the 11th U.S. Circuit Court of Appeals in Atlanta. The administration has until Sept. 26 to ask the full 11th Circuit to review the case, or it could appeal directly to the Supreme Court.

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Republican candidate Herman Cain, speaking in Iowa last week, is pressing for quick action on a Supreme Court review.

Republican presidential candidate Herman Cain tweeted Tuesday, "We must keep pressure on Dept. of Justice not to delay the hearing of Obamacare case in Supreme Court! It cannot wait til 2012!"

Tom Goldstein, a lawyer who frequently argues before the Supreme Court and publishes the Scotusblog.com website, said he believes the government will seek the full 11th Circuit review. "They will not want to allow this panel opinion to stand," he said, because of the "momentum" against the insurance mandate generated by the 207-page ruling.

Supreme Court justices are likely to take particular interest in the 11th Circuit case, filed by 26 mostly Republican state attorneys general and governors who are represented by Paul Clement, solicitor general in the Bush administration. While that panel found the insurance mandate unconstitutional, it unanimously upheld other provisions of the law expanding Medicare coverage for lower-income Americans.

—Ashby Jones contributed to this article.

Write to Jess Bravin at jess.bravin

Copyright 2011 Dow Jones & Company, Inc. All Rights Reserved

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