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NJ Daily / CAMPAIGN 2012

Anthony Kennedy, Running Mate

President Obama signs the health care bill into law on March 23, 2010. The fate of the controversial legislation -- and possibly his reelection bid -- may soon rest with the Supreme Court.(Richard A. Bloom)

September 28, 2011

CORRECTION: An earlier version of this story incorrectly stated the location of the 4th U.S. Circuit Court of Appeals. It is in Richmond, Va.

The Obama administration is no glutton for punishment. At least that seems to be the case after the Justice Department declined to press for a rehearing of a Circuit Court finding that the administration's signature health care law contained an unconstitutional individual mandate. The law would have ended up before the Supreme Court eventually, so why delay the inevitable?

But that decision carries significant political risk. The Justice Department's decision not to ask the Richmond-based 4th U.S. Circuit Court of Appeals to reconsider the panel's decision in an en banc hearing means that the law is more likely to end up before the Supreme Court this term, which begins Monday.


That would make a ruling likely by the end of the term in late June. And that means the most controversial, and least-popular, aspect of President Obama's signature legislative accomplishment during his first term will be judged just four months before voters decide whether he deserves a second term.

And there is a very good possibility that the Supreme Court would rule against the individual mandate,\ -- and perhaps the entire law. A verdict like that would not only remind voters that they viewed the health care reform law unfavorably in the first place, it would also give Republicans the chance to have those views validated by the highest court in the land.

If the law is struck down so soon before the election, the political damage could be irreversible. Many Democratic strategists we talked with on Tuesday were flummoxed as to why the administration would move up a Supreme Court showdown rather than postponing it until after election season.

But that assumes a worst-case scenario for the administration. The Justice Department's lawyers may believe they have a good chance to win over a majority of justices. They also may have calculated that it's better to give a Democratic Justice Department a chance to defend the law, rather than wait, risking the loss of the White House and the near-certainty that a Republican administration would abandon it the same way Democrats abandoned the Defense of Marriage Act earlier this year.

And the president's political advisers may see an advantage to bringing the law up again. After all, as Democrats are fond of pointing out, there are many aspects of the law that remain politically popular, including a provision that allows younger Americans to stay on their parents' health care plans until they are 26 years old and a provision that prohibits insurance companies from declining coverage based on preexisting conditions.

What's more, there are actually Republican alternatives, including House Budget Chairman Paul Ryan's proposal that would transform Medicare into a voucher program and the "cut, cap, and balance" proposal that would go further. Given the focus on a federal deficit that can likely only be solved by addressing entitlement programs, it is almost certain that Medicare and health care reform will be major points of contrast between Obama and the eventual Republican nominee. If that's the case, Democrats believe it is to their political advantage to contrast the two alternatives.

In the end, the timing may not have mattered anyway. Some Supreme Court watchers believe that even a delay caused by an en banc panel would not have pushed a high court decision on health care past next fall's elections and that a decision in September or October -- rare but not unprecedented for the Court -- could do more damage than an earlier one. Conversely, while it's more likely that the Court will take up an inevitable case this year, it's no guarantee of a decision in this term; other challenges are working their way through other circuits, and the justices may decide to hold off on taking up a challenge until all lower courts have ruled.

But as one prominent Washington attorney put it to us, in a mile-long race toward the Supreme Court, the administration's decision to forgo an en banc hearing certainly shaves off a few hundred yards. The administration has now increased the prospects that health care will head to the Supreme Court before Election Day 2012 -- something that carries undeniable political risks.

The unpopularity of health care reform legislation helped Republicans win big in the 2010 elections. Republican presidential contenders pound the legislation relentlessly before their fans, and the eventual nominee will certainly use the law as an argument against the president. That the law will play a major role in next year's elections is a foregone conclusion. Whether Republicans will have a much stronger argument that the seminal achievement of Obama's first term was fundamentally unconstitutional is something the Supreme Court will decide.

And Obama has left that decision in the hands of a narrowly divided Court, one that is almost assured of dividing 5-4 on the constitutionality of an individual mandate. Whichever side the majority falls is likely to be decided by Justice Anthony Kennedy.

Kennedy will never be on a ballot, but the Obama administration has bolstered the possibility that Kennedy's decision will be the president's running mate next year.

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