Supreme Court Now Likely To Hear Obamacare Appeals During Current Term
Yesterday, the Obama Administration was faced with the decision of whether to appeal the 11th Circuit Court of Appeals decision striking down the Affordable Care Act to the Supreme Court or seek a rehearing before the full 11th Circuit. If it chose to exercise the second option it would likely mean that the Supreme Court would not issue a final ruling on the matter until after the 2012 elections. As it turned out, though, the Justice Department declined to file for en banc review and the stage is now set for one of the most closely watched legal cases in years to make to the highest court in the land:
The Obama administration chose not to ask the 11th Circuit Court of Appeals to re-hear a pivotal health reform case Monday, signaling that it’s going to ask the Supreme Court to decide whether President Barack Obama’s health reform law is constitutional.
The move puts the Supreme Court in the difficult position of having to decide whether to take the highly politically charged case in the middle of the presidential election.
The Justice Department is expected to ask the court to overturn an August decision by a panel of three judges in the 11th Circuit Court of Appeals that found the law’s requirement to buy insurance is unconstitutional. The suit was brought by 26 states, the National Federation of Independent Business, and several individuals.
Since the ruling, the Justice Department had until Monday to ask the entire 11th Circuit to review the case. Administration lawyers didn’t file the paperwork by the 5 p.m. deadline, so the ruling would stand unless the Justice Department asks the Supreme Court to step in.
The petition isn’t due until November, and the administration could get an extension.
Opponents of the law had expected the government to ask for the so-called en banc hearing to delay a ruling by the Supreme Court.
“The president and solicitor general deserve full credit for refusing to employ delaying tactics in this pressing constitutional controversy,” said Randy E. Barnett, a Georgetown Law professor who is working with the plaintiffs.
But former acting Solicitor General Walter Dellinger, who has worked on briefs in support of the legislation, said the move should be read as a sign of confidence from the administration.
“This confirms what I had already concluded: That the government is confident that it’s going to prevail in the Supreme Court and would like to have a decision sooner rather than later,” Dellinger told POLITICO.
More importantly, as the Politico goes on to note, the 11th Circuit bench is dominated by Republican appointed judges. As Orin Kerr speculates, it’s possible that the lawyers believed that an appeal to the full court would have been a losing proposition anyway, and that it would have left them with another set of opinions to argue against at the Supreme Court.
Whatever the reason, though, this decision makes it far more likely that the Supreme Court will hear oral argument and rule on the Constitutionality of the individual mandate by the end of the current term in June 2012.There are already two other cases ripe for Supreme Court review in addition to the 11th Circuit case. In one, Thomas More Law Center v. Obama, the Plaintiffs have already filed their petition for review with the Supreme Court [PDF]. The other case is Virginia v. Sebelius /Liberty Unviersity v. Sibelius, in which the Fourth Circuit threw out the challenges to the PPACA on the ground that the Plaintiffs did not have standing to challenge the law at this time. Theoretically, the More case should be considered by the Court first but it seems probable that the Court will delay ruling on the petition until it’s received those filed in the other cases later this year. Although it would be a tight squeeze, it would still be possible for the Court to agree to hear the case and schedule an oral argument in the early spring, with a ruling coming right before the Presidential race switches into General Election mode.
The political implications of a court ruling either way are interesting to consider.
If SCOTUS strikes down the mandate, many will interpret it as a huge blow to the Obama Administration. Given that the Court would be striking down the lynch pin of the President’s biggest piece of domestic legislation from his First Term, this is wouldn’t be an exaggeration. The Tea Party movement would certainly be energized by this outcome, and most would see it as vindication of their view of the Constitution and the proper role of government. On the other hand, it could also energize the left and boost the profile of those who say that Congress should have gone with a single payer plan all along. Similarly, a ruling upholding the mandate will be interpreted, rightly, as a huge victory for the Administration. At the same time, though, it’s also likely to energize the right and rally people around the argument that they have to make sure a Republican elected President given the number of Supreme Court vacancies likely to occur during the term of whoever takes the Oath of Office on January 20, 2013. In fact, all this attention on the Supreme Court is likely to make judicial appointments a bigger issue in 2012 than they otherwise might have been.
Of course, as I’ve mentioned before, the Supreme Court could decide to punt this matter. It could hold off on ruling on the parties’ petitions until later in the term and then schedule oral argument during the October 2012 Term, meaning that we wouldn’t get a ruling until some time after the elections. Or, it could take the avenue offered by the Fourth Circuit and rule that none of the parties challenging the mandate currently have legal standing to challenge the law. That would put any final legal ruling on the mandate off far into the future, and ensure that ObamaCare, or whatever you want to call, will remain a political football and a GOP punching bag for some time to come.