The Obama administration and the 26 states that prevailed in the 11^th Circuit decision striking down the individual mandate of the Patient Protection and Affordable Care Act have finally found common ground of sorts: they both believe it’s time to move the determination of the Act’s future directly to the nation’s highest court.  In September, both sides filed petitions to place the controversial law before the Supreme Court. Similar petitions have also been filed by other groups, but the 26-state petition is the one most court-watchers feel is most likely to draw the attention of the justices.

Of course, some experts note the Court could rule that under the Anti-Injunction Act enacted in 1867 (26 U.S.C. § 7421(a)), the 26 states actually lack standing as the administration has argued, and refuse to take their case. In its prohibition of suits contesting the assessment or collection of any tax until the tax has actually been paid, the Anti-Injunction Act could apply in connection with the tax penalty imposed by PPACA.

The administration move definitely took many by surprise. But given the health reform deadlines approaching between now and 2014, and the hesitancy some states feel in moving full steam ahead given uncertainty as to how the law would ultimately fare in the Supreme Court, in whole or in part, it makes sense. (That said, even if the Court does agree to review and rule on the case, a number of states are still unlikely to be able to fully comply with the requirement to implement exchanges by 2014.)

The Court has yet to decide whether to accept the case. Aside from the often-discussed aspects of the law that may well form the basis of any high court decision, such as the individual mandate and the Commerce Clause, or the severability issue that may or may not determine the entire bill’s future, the timing of the move to seek a Supreme Court decision puts oral arguments and a ruling directly amidst the presidential election season and possibly other court rulings on cases involving immigration and affirmative action. Considering the potential for controversy that this timing presents for any high court decision, one can just imagine the book deals already being inked. Should be interesting…

Editor’s Recommendation: NILS INsource can help keep you current with PPACA and healthcare reform initiatives.