A move by the Justice Department -- due today -- may determine whether the Supreme Court takes up the titanic legal battle over the Obama health care bill this term or waits another year.
The government must say by today what it will do in response to a decision in August by a federal appeals court. Issuing a ruling in a lawsuit brought by Florida and 25 other states who challenged the law, a three-judge panel said Congress exceeded its powers in requiring that virtually all Americans buy health insurance.
Under federal rules, the Obama administration must give notice today if it wants the full appeals court to re-hear the Florida case. The Justice Department could opt to bypass the appeals court and go directly to the U.S. Supreme Court.
If the administration chooses today to bypass the appeals court in the Florida case, there's a good chance the Supreme Court would agree sometime during this coming term to hear the health-care challenges. But if the government seeks review by the full appeals court, then it's almost certain we'll have to wait another year -- which would mean that a decision on the Obama health-care law would be coming during the 2012 election year.
Two other courts of appeal have ruled on challenges to the law. One ruled that a legal challenge brought in Virginia was filed prematurely. The court said the financial penalty the law would impose on those who fail to buy insurance is actually a tax. A federal law, the Anti-Injunction Act, bars lawsuits seeking to challenge a tax provision before it goes into effect, the court said.
A separate federal appeals court upheld the health-care law. The challengers in that case have already asked the Supreme Court to take up the issue.