Conservatives are convinced they are close to victory now that the Department of Justice has advanced the lawsuit of 26 states questioning the constitutionality of Barack Obama's health care to the U.S. Supreme Court for a decision.
The DOJ filed a brief Wednesday asking the nation's highest court to review the 11th Circuit Court of Appeals' the 2- 1 decision to strike down the Affordable Care Act. The Justice Department displayed a measure of confidence in its statement about the decision.
"The Department has consistently and successfully defended this law in several court of appeals, and only the 1th Circuit Court of Appeals has ruled it unconstitutional," said the DOJ statement. "We believe the question is appropriate for review by the Supreme Court."
However, Liberty Counsel Chairman Mathew Staver said the DOJ is not going to the Supreme Court with confidence. Rather, he said, the administration was backed into a corner.
"They had no choice," he told The Christian Post. "If they didn't file the petition yesterday they would have been left with a federal court of appeals case that strikes down Obamacare and that decision would have become final."
The DOJ could have also appealed the appeals court decision in a lower court, possibly delaying ruling until 2013. That move could possibly leave the door open for a new administration to offer a lackluster defense for the health care reform.
Petitioning the Supreme Court means that the matter could be decided as soon as next summer, said Staver. He is optimistic that the high court will rule in favor of conservatives and the 26 states named in the 11th Circuit case who all oppose the Obamacare bill.
Staver launched a lawsuit against the health care bill on behalf of Liberty University. The conservative Christian college suit stated that the government's employer mandate to provide employees health insurance with coverage for abortion-related fees violated the institution's right to free speech and religious freedom. The case failed in district court and is currently being appealed to the 4th U.S. Circuit Court of Appeals.
Staver believes his case, like the 11th Circuit case, will be considered by the Supreme Court. If the Supreme Court strikes down the reform bill's individual mandate, said Staver, the whole bill will fall.
"We've challenged the individual and employer mandate," he said. "If one of those is struck down, like the individual mandate, the entire law, I think by virtue of that, has to go."
The 11th Circuit, in Atlanta, ruled in August that the federal government exceeded its power under the Commerce Clause of the U.S. Constitution by requiring Americans to buy health insurance. The lawsuit was filed by 26 states which opposed the bill approved by Congress and the president last year.
Like several local plaintiffs who filed suit, the states made the case that Article 1, Section 8 of the Constitution gives Congress the authority to regulate commerce among the several states, but not commerce among individuals.
Two of the three appellate judges agreed.
"What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die," the judges wrote in the majority opinion.
While the court ruled in the states' favor, it did not strike down the entire law.
The states also petitioned the Supreme Court to hear the case.