The Justice Department said the justices should hear its appeal of a decision by a three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, that struck down the centerpiece of the law by a 2-to-1 vote.
“The department has consistently and successfully defended this law in several courts of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional,” the Justice Department said in a statement. “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,” the statement continued. “We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”
On Monday, the administration announced that it would not seek review from the full 11th Circuit. Its Supreme Court petition was not due until November.
The administration did not explain why it did not take routine litigation steps that might have slowed the progress of the challenges enough to avoid a decision in the current Supreme Court term. It did say in its brief that the 11th Circuit’s decision striking down the central piece of a comprehensive regulatory scheme created “a matter of grave national importance.”
The political calculus is complicated. A decision striking down President Obama’s signature legislative achievement only months before the election would doubtless be a blow. But a decision from a court divided along ideological lines could further energize voters already critical of last year’s 5-to-4 campaign finance decision, Citizens United.
A decision upholding the law might also both help and hurt Mr. Obama’s chances. It would represent vindication, but it could also spur some voters to redouble their efforts to elect candidates committed to repealing it.
The three federal courts of appeal that have issued decisions on the law so far have all reached different conclusions, with one upholding it, a second — the 11th Circuit— striking it down in part, and a third saying that threshold legal issues barred an immediate ruling. A fourth challenge to the law was heard last week by the United States Court of Appeals for the District of Columbia Circuit.
The views of the appeals court judges have not uniformly tracked the presumed views of the presidents who appointed them. Judge Jeffrey S. Sutton, appointed by President George W. Bush, joined the majority in a 2-to-1 decision of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, which upheld the law. Judge Frank M. Hull of the 11th Circuit was appointed by President Bill Clinton and was an author of its majority opinion.
Also on Wednesday, two sets of plaintiffs who had won on the core issue in the 11th Circuit filed their own requests for Supreme Court review.
“Time is of the essence,” wrote Paul D. Clement, a former United States solicitor general who represents 26 states that are challenging the law. “The grave constitutional questions surrounding the A.C.A. and its novel exercise of federal power will not subside until this court resolves them.”
The 11th Circuit, in a decision issued in August, ruled that a part of law requiring the purchase of insurance — the so-called individual mandate — was an unconstitutional exercise of Congressional power.
The majority decision, written by Chief Judge Joel F. Dubina and Judge Hull, said, “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated Congressional powers.”
The United States solicitor general, Donald B. Verrilli Jr., disputed that analysis in the administration’s brief. The law, he wrote, requires most people to buy insurance “rather than rely on a combination of attempted self-insurance and the back-stop of care paid for by other market participants.” The individual mandate, he went on, “like the act as a whole, thus regulates economic conduct that substantially affects interstate commerce.”
The 11th Circuit ruled against the 26 states and the other plaintiffs on two points. It said its ruling on the individual mandate did not require “wholesale invalidation” of the law, and it upheld the law’s expansion of the Medicaid program.
The petition from the 26 states and a second one, from the National Federation of Independent Business and two individuals, sought review on the issues they had lost in the 11th Circuit. The administration’s brief and those of the plaintiffs mostly addressed different questions and talked past one another. Each side now has a chance to respond and tell the court its views about whether the issues identified by its adversaries warrant review.
But almost all of the usual signs indicate that the court will agree to hear at least one challenge to the law: a federal appeals court has struck down a major piece of federal legislation, the lower courts are divided about its constitutionality, and all sides, including the federal government itself, agree that review is warranted.
It is less clear which case the justices will agree to hear. Also pending before the justices is a petition from several individuals and the Thomas More Law Center, which describes itself as a defender of “America’s Christian heritage and moral values,” seeking review of the Sixth Circuit decision.
Nor is it clear which issues the justices will focus on. Simply agreeing to hear a case does not guarantee that the Supreme Court will decide whether Congress had the power under the Constitution’s commerce clause to enact the individual mandate, the question at the heart of the challenges.
The court could agree with some lower courts that some or all of the plaintiffs lack standing to sue or that the central issue is not yet ripe for decision. The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., for instance, ruled this month that it was premature to decide the central question, citing a federal law allowing suits only after certain taxes and penalties are due. The administration found itself in an awkward position on this question before the Supreme Court, as it had initially pressed but later abandoned the argument.
In Wednesday’s brief, Mr. Verrilli said the administration did not think it should win on the Fourth Circuit’s theory. It nonetheless suggested that the court consider the issue and perhaps appoint a lawyer to present arguments in favor of it, as the court occasionally does when the parties agree on a significant issue that could alter the outcome of the eventual decision.