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Published: Thursday, 9/29/2011

Top court asked to study health care

McCLATCHY NEWSPAPERS

WASHINGTON -- The Obama Administration yesterday formally asked the Supreme Court to review its disputed health-care law, a move likely to set up a blockbuster election-year decision.

On the heels of an appellate court defeat, the Justice Department late yesterday afternoon filed the 34-page petition urging the court to uphold the law's mandates.

The 11th U.S. Circuit Court of Appeals in Atlanta last month struck down the so-called individual mandate.

"The department has consistently and successfully defended this law in several court of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional," the Justice Department said in a written statement. "We believe the question is appropriate for review by the Supreme Court."

Foes of the health-care law want the court to act too. Earlier yesterday, the National Federation of Independent Business filed a competing petition urging the Supreme Court to take up the case so it could strike down the law. Separately, 26 states filed petitions yesterday challenging the law's constitutionality.

"This case offers this court an ideal vehicle to resolve pressing and persistent constitutional questions arising out of the law," wrote Paul Clement, former Bush administration solicitor general, on behalf of the 26 states.

He had successfully argued at the appellate court level against what's called the Patient Protection and Affordable Care Act, derided as "Obamacare."

The law was billed as extending health-care coverage to 30 million more Americans. Passed in 2010 over unanimous Republican opposition, the law has been a centerpiece of GOP attacks on the Obama presidency.

In its 2-1 ruling on Aug. 12, the 11th Circuit ruled that the constitutional clause granting Congress authority over interstate commerce did not stretch so far as requiring individual insurance coverage.

"Congress, in exercising its commerce authority, must be careful not to sweep too broadly," it said in its 207-page majority opinion.

But citing "notions of judicial restraint and respect for the separation of powers," the appellate court let the rest of the law stand. Critics of the law hope the Supreme Court will take the entire law apart.

Underscoring the political intensity, the Justice Department filed its Supreme Court petition far earlier than it had to. The department had hinted at its intentions Monday when it announced it would not ask all 11 judges of the 11th Circuit to review the August decision by the three-judge panel.

Yesterday's actions make it all but certain that the court soon will agree to hear one or more cases involving challenges to the law, with arguments by the spring and a decision by June, in the middle of the presidential campaign.

If the administration had asked for a rehearing by the entire appellate court, which spans Florida, Alabama, and Georgia, a final Supreme Court decision would have been pushed back until after the 2012 election. The calculation could be that the issue will be a winner for the President next summer, whichever way the court rules.

"We firmly believe that, as has been upheld by a number of different decisions, that ultimately the Affordable Care Act will be found constitutional, because it is," White House spokesman Jay Carney said.

Appellate courts are badly split. While the 11th U.S. Circuit Court of Appeals found the insurance mandate unconstitutional, the 6th U.S. Circuit Court of Appeals, which includes Kentucky, Michigan, Ohio, and Tennessee, agreed with the Obama Administration that Congress acted within its authority.

"The minimum coverage provision regulates activity that is commercial and economic in nature, namely how and when health care is paid for, and when health insurance is purchased," Solicitor General Donald Verrilli, Jr., argued in his brief yesterday for the administration.



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