- The Washington Times - Monday, September 26, 2011

Signaling that it wants a speedy hearing by the Supreme Court, the Obama administration decided not to ask a federal appeals court in Atlanta to further review a ruling that strikes down the centerpiece of President Obama’s new health care law.

Monday was the last day the administration could ask the 11th Circuit Court of Appeals for a second hearing on a challenge brought by 26 states to a provision in the law that requires individuals to either purchase health insurance or pay a fine.

A hearing before the entire court instead of a three-judge panel could have delayed the lawsuit from reaching the Supreme Court until after next year’s presidential election. The administration’s decision means the case is more likely to be heard by the Supreme Court next year.

“The 11th Circuit is well to the right of the Supreme Court, so going to the court doesn’t really serve their goal of winning,” said Ian Millhiser, a policy analyst for the Center for American Progress. “It’s just going to get a whole lot more voices that are a lot more conservative.”

In August, the 11th Circuit became the first, and so far only, appeals court to strike down the individual mandate, after the 6th Circuit upheld the mandate in June in response to a challenge by the Thomas More Law Center.

The panel concluded in a 2-1 decision that the individual mandate was unconstitutional, but allowed the rest of the law to stand. Judges Stanley Marcus and Frank Hull, both appointed by President Ronald Reagan, split on the decision, with Mr. Marcus writing the dissent. Judge Joel Dubina was appointed by George H.W. Bush.

Legal experts say the Supreme Court is most likely to take up the 11th Circuit case, although it could hear several cases together.

“I think the 11th Circuit case is the most likely granted,” Mr. Millhiser said. “It’s the only case where the law was struck, and the Supreme Court generally reviews cases where the federal law was struck.”

The Thomas More Law Center has asked the Supreme Court to hear its challenge to the individual mandate, which was upheld by the 6th Circuit in June. The Department of Justice is expected to respond to the writ of certiorari Wednesday.

The administration likely will do the same for the 11th Circuit ruling, giving the court plenty of time to hear the case before the end of next summer, said Tim Jost, a law professor at Washington and Lee University.

“I think the Department of Justice wants to get it decided sooner rather than later, and the plaintiffs obviously will like to get it decided,” Mr. Jost said.

Judges in the 3rd, 4th and 9th circuits have ruled that the courts have no jurisdiction to rule on challenges to the health care law. Appeals are still pending in the 8th Circuit and the D.C. Circuit Court of Appeals.

• Paige Winfield Cunningham can be reached at pcunningham@washingtontimes.com.

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