In it, but not of it. TPM DC
Here's how the Justice Department explains the development. "The Department has consistently and successfully defended this law in several court of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional. We believe the question is appropriate for review by the Supreme Court. 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. 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."
A three judge panel on the 11th Circuit found the individual mandate -- a key prong of the health care reform law -- unconstitutional. Earlier this week the administration declined to seek a review of that ruling by the full circuit -- what's known as an "en banc" review. They've chosen instead to go straight to the top.
It's a gamble that nearly guarantees the Supreme Court will decide the matter once and for all before the 2012 elections -- though some observers expected it would reach that point next summer regardless. It's a sign that the administration feels the existing circuit court rulings -- including favorable opinions by some conservative judges -- mean they'll likely prevail before the Supreme Court. Or, perhaps, that they want to make sure their own Solicitor General argues the case rather than risk handing the suit over to a potential Republican administration in 2013.
On a conference call with reporters shortly after the DOJ announced it was seeking review, a senior official denied that political concerns had anything to do with the Department's decision, and noted that the administration was seeking a ruling on the merits of the lawsuit -- not a dismissal on procedural grounds.