Look for liberals to start citing Bush v. Gore.

Sap 30, 3011
WSJ

The Justice Department requested Wednesday that the Supreme Court hear the historic constitutional challenges to President Obama’s health-care plan, making a final ruling prior to the 2012 election all but inevitable. Justice has its reasons, but let’s underscore what a remarkable moment this is.

When the states began to file suits contesting the Affordable Care Act only days after it became law, Democrats and the liberal legal establishment sneered that these were merely the last wheezes of the health-care debate’s losers. The revanchists were said to be clinging to legal arguments—about the core limits of federal power under the Commerce Clause—that had been obsolete since the New Deal. Yet now multiple federal courts have struck down the law as unconstitutional in whole or in part, including a 2-1 decision by the 11th Circuit Court of Appeals.

In a statement about its Supreme Court cert petition, Justice stuck that same lost-cause note, writing that “Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed.” Even if the Administration’s lawyers couldn’t resist this allusion to Jim Crow, it’s a striking concession: The constitutional questions ObamaCare poses must be adjudicated by the nation’s highest court.

The speculation in legal circles is that Justice declined to ask the 11th Circuit for a full en banc hearing because it expected to lose based on the composition of the panel. But there are other political and legal arguments for doing so.

Assuming the Supreme Court takes a case, an opinion could come in summer 2012. At the least the Administration is now ensuring that it will do the defending in court, whereas a Republican President in 2013 might take a pass as Mr. Obama did with his decision on the Defense of Marriage Act.

The White House could also figure that the Supreme Court might be more reluctant to overturn what Mr. Obama calls his signature achievement in the middle of his re-election campaign. Part of the not-so-subtle liberal campaign to influence the High Court will be to suggest that overturning the individual mandate is akin to Bush v. Gore as a political intrusion.

We trust the Justices won’t fall for this line because the constitutional ramifications are far more important than the ephemeral politics.

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