The fate of health care reform was likely to end up in the hands of the U.S. Supreme Court. But as legal challenges make their way through the appeals process, the question is, which case will the U.S.' top court hear?
A consensus has formed around a case before the 11th Circuit Court of Appeals, which released a decision on a challenge to the Affordable Care Act Aug. 12. In a 2-1 ruling, the Atlanta-based circuit court decided that Congress exceeded its authority in mandating health care coverage, but left the rest of the law intact.
11th Circuit Case May Be Most Suitable
As one of three circuit courts to issue rulings on legal challenges to the law, this case covers issues absent in other appellate decisions.
They're probably going to want to take a case that raises all the issues and the 11th Circuit is a pretty good vehicle, said Lisa Blatt, head of Supreme Court practice at Arnold & Porter in Washington.
On Wednesday, a small business group and 26 Republican state attorneys general petitioned the Supreme Court to take the case. The Obama administration Tuesday also signaled its intent to have the Supreme Court decide the president's health care law by declining to seek a review of the 11th Circuit's decision from every judge on the appellate circuit.
There is currently a petition from the 6th Circuit, which upheld the constitutionality of the individual mandate, pending before the Supreme Court. An appeals court in Washington, D.C., has yet to release a decision on the case before it.
According to SCOTUSblog, the Supreme Court has the right to choose one, all or none of the petitions.
How they will choose is not a matter of public knowledge, but it is likely that the court would prefer a case that would present the constitutional issues clearly and directly, in petitions that would be argued by lawyers seasoned in Supreme Court practice, wrote Lyle Denniston, a veteran Supreme Court reporter who now reports for SCOTUSblog.
Meanwhile, Wednesday's Supreme Court petitions argue that the 11th Circuit opinion is the best case for the high court to take.
Severability Issue Present in 11th Circuit Case
One reason is that the 11th Circuit decision addresses the so-called severability issue, that is, whether the entire law hinges on the constitutionality of requiring Americans to have insurance.
What would be ideal is for the court to take a case with both the mandate issue and the severability issue cleanly presented, so that if they agree with us, that the mandate is unconstitutional, they can then decide the question... how much of the statute can survive, explained Gregory G. Katsas, a partner at Jones Day representing the small business group challenging the law.
Katsas argued that the rulings from the 4th and 6th Circuits are less than ideal for the Supreme Court. For the 4th Circuit, the case was tossed for jurisdictional reasons. In the 6th Circuit, the severability issue was never mentioned, according to Katsas.
11th Circuit Decision Created 'Circuit Split'
Another boon for the 11th Circuit is that the case is prime for Supreme Court review. By striking down the individual mandate, the decision created a so-called circuit split with the 6th Circuit, which ruled in favor of the Obama administration.
And unlike the 6th Circuit, the 11th Circuit decision struck down an act of Congress.
Katsas said that a decision creating a circuit split and striking down a federal statute catches the Supreme Court's interest.
Our case has both, he said.