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Legal maneuvers on Wednesday made it likelier than ever that the Supreme Court will rule on the constitutionality of the health care reform law during the coming term, with a decision likely to come down in the midst of the 2012 presidential campaign. The Justice Department late Wednesday filed a petition seeking high court review of a ruling in August by the U.S. Court of Appeals for the 11th Circuit that said the controversial individual mandate — which requires most individuals to purchase at least a minimum of coverage — was an unconstitutional exercise of congressional power. “The minimum coverage provision is squarely within Congress’ power to regulate interstate commerce, lay and collect taxes, and enact legislation that is necessary and proper to effectuate its enumerated powers,” declared the petition, signed by Solicitor General Donald Verrilli Jr. Likening the Affordable Care Act to other major legislation in the past such as the Voting Rights Act and Social Security Act that were challenged in court, a Justice Department statement said, “all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.” The Obama administration’s decision to face the music on the landmark legislation came on the same day that the winners in the 11th Circuit case also urged high court review. Even though the 11th Circuit struck down the individual mandate, it said that provision was “severable,” meaning that the rest of the law could survive without it. The National Federation of Independent Business and 26 states that joined to challenge the law in the 11th Circuit filed petitions Wednesday urging the justices to rule that the mandate provision was not severable and that the entire law should fall. “Everything is on track to ensure Supreme Court review this term,” said Jones Day partner Gregory Katsas, who filed the petition for the NFIB on Wednesday. He said it was “99.99-plus percent certain” that the high court would grant review in at least one of the several cases testing the law’s constitutionality. Along with partner Michael Carvin, Katsas filed the petition with the Supreme Court urging the high court to rule on the Affordable Care Act quickly. “Harmful uncertainty currently pervades the nation concerning the fate of the entire ACA,” they wrote. The case is NFIB v. Sebelius, ruled on in August by the U.S. Court of Appeals for the 11th Circuit. The 26 states that challenged the law in tandem with the NFIB also filed a brief seeking high court review on Wednesday. Former Solicitor General Paul Clement of the Washington-based Bancroft law firm submitted the brief which, among other things, asserts that the law’s impact on health coverage for state employees violates state sovereignty. The Obama administration’s petition, in addition to its Commerce Clause argument and other arguments in favor of the law, revived an issue it had abandoned in earlier stages of litigation over the law. The petition asked the justices to consider whether any court yet has jurisdiction over challenges to the individual mandate. The Anti-Injunction Act generally bars litigation over taxes before they are assessed. The U.S. Court of Appeals for the 4th Circuit, in a separate case decided this month, found that the anti-injunction law applied to the health care legislation, because no one would be penalized or taxed for refusing to purchase health insurance until 2014 at the earliest. Verrilli’s brief suggested that in light of the 4th Circuit ruling, the Supreme Court should appoint an amicus curiae to defend the view that the Anti-Injunction Act is a bar to the health care litigation altogether. With both sides wanting the Court to review a decision that in part struck down a major segment of federal legislation, it seems inevitable that the Court will grant review soon and schedule argument in the spring, with a decision likely before the end of June 2012. “The end game now appears to be fast approaching,” said Santa Clara University School of Law professor Brad Joondeph, who writes for the ACA Litigation Blog. “A cert grant by late October, oral argument likely in February or March, and a decision by June.” Meanwhile, the Obama administration was also expected to file its reply to a petition seeking review of a June ruling by the 6th Circuit in Thomas More Center v. Obama that upheld the legislation. The center petitioned for high Court review in late July. But the NFIB urged the Court to view the 11th Circuit ruling as the best vehicle for resolving all the pending disputes relating to the landmark legislation. Issues of standing and jurisdiction that have complicated the other litigation against the law are absent in the 11th Circuit case, the brief said. Georgetown University Law Center professor Randy Barnett, who signed the NFIB brief along with the Jones Day team, said the severability issue asks whether Congress would have passed the entire bill without the individual mandate mechanism as a way of paying for expanded coverage. Barnett asserted that it was “inconceivable” that Congress would have done so, making it impossible for the rest of the law to survive if the mandate is struck down. Tony Mauro can be contacted at [email protected].

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