Supreme Court Now Likely To Hear Obamacare Appeals During Current Term

The Supreme Court is on track to issue its most anticipated ruling in years right in the middle a Presidential campaign.

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.

FILED UNDER: 2012 Election, Healthcare Policy, Law and the Courts, US Politics, , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Hey Norm says:

    “…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…”

    Of course opponents of the law also believe men rode dinosaurs…so there you go.
    There’s nothing in the Constitution that will cause repeal of the PPACA…even the partisan judges who ruled against it had to make stuff up to support their opinions.
    Good for the administration…plow ahead and get this silliness over with.

  2. @Hey Norm:

    I think your confidence in the outcome is a bit premature. At this point, I’m not sure that anyone can accurately guess what will happen. I’m beginning to lean toward the idea that the court will take the 4th Circuit’s route and throw these cases out on standing grounds.

  3. Sam says:

    How will Barack Alinsky Obama twist a SCOTUS loss into a club to bash his opponents?

    I am sure he will make an attempt at it.

    Like his jobs plan that he knew would not get far and then say its the Repubs that don’t want to put people back to work?

  4. Sam says:

    @Doug Mataconis:

    Who WOULD have standing then?

    And just WHAT is anyone willing to allow the government to FORCE one to purchase?

    If we must buy a health insurance policy because it was deemed so by the government, why can’t they then force us to purchase peas and broccoli to lower our use of the health insurance they forced us to buy?

  5. @Sam:

    The Fourth Circuit ruled that under the Anti-Injunction Act, nobody has standing until the mandate has gone into effect and someone has been fined for not purchasing insurance.

  6. samwide says:

    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.

    See Orin Kerr, Is the Individual Mandate “Unprecedented” Because It Is More Statist Than Previous Laws, or Because It Is More Market-Oriented?:

    [T]he argument of the mandate opponents doesn’t strike me as a particularly libertarian. If the courts conclude that the mandate approach is unconstitutional, then the more market-oriented approach to benefits would be ruled out. Congress would have a choice: Don’t mandate benefits, or else mandate using a 1960s Great Society government monopoly model. Depending on what kinds of policies are popular in the future, the result may be to push future Congresses to embrace the government monopoly model more. If Congress had the determination to pass a benefits program but the more market-oriented approach were ruled out, then it would presumably proceed with a government monopoly program instead. Perhaps the Constitution requires that. But it doesn’t strike me as a libertarian result.

  7. samwide says:

    @Doug Mataconis:

    The Fourth Circuit ruled that under the Anti-Injunction Act, nobody has standing until the mandate has gone into effect and someone has been fined for not purchasing insurance.

    Yeah, and that could derail all the litigation as you said.

  8. @Sam:

    Who WOULD have standing then?

    And just WHAT is anyone willing to allow the government to FORCE one to purchase?

    It depends on whether PACA is facially unconstitutional or just unconstitutional as implemented. If it’s the latter, you can’t have standing to challenge it unless it’s actually been applied to you (i.e. come back in 2014 when you’ve actually been fined for not abiding by the mandate).

  9. Stan says:

    Sam, the requirement to purchase health insurance is aimed at increasing the customer base of the insurance industry to compensate the industry for a) removing a ban on insuring people with pre-existing conditions, b) removing annual and lifetime caps on coverage, c) giving up the right to cancel a policy when the policy holder contracts an expensive disease, d) allowing all people under the age of 26 to stay on their parents’ health insurance plans, and e) requiring the insurance industry to pay for annual physicals.

    I’m sure you know this stuff, yet you still oppose the individual mandate. I’m curious to know why. Do you feel that it’s an infringement on your freedom? Or do you object to the expense? I’m asking this in a non-snarky way, and I hope you can answer without insulting me or President Obama in the process.

    I’m also curious as to why Doug opposes the Affordable Care Act, Medicaid, and Medicare.

  10. mantis says:

    I’m also curious as to why Doug opposes the Affordable Care Act, Medicaid, and Medicare.

    He’s a libertarian. The sick and poor should be left to die. Oh wait, generous churches will help them, or something. Freedom!

  11. Hey Norm says:

    @ Doug…
    Actually to the contrary…I guess I wasn’t clear.
    Scalia will have to reverse himself on every single Commerce Clause decision he has ever made…but given the interest of his benefactors, the Koch Brothers, he will be more than willing to do that. Thomas, whose own conflict of interest has been well documented, will follow suit as always. The resulting decision will only serve to further clarify the hyper-partisanship of the extremeist wing of the Supremes.
    As a result the adults in the room will have to take the next step in Health Care reform…continue it’s evolution for the better…it’s inevitable…the status quo is simply unsustainable. The Teavangelicals answer to the problem is to…well refer to the rates of uninsured in Texas for the Teavangelicals answer to the problem.
    It will be a temporary set-back…but, as always, the Republic will move forward in the face of those doing their best to take us backwards.
    The process demands that the Supreme Court rule before we can move forward…so just get the silliness over.

  12. Sam says:

    @Doug Mataconis:
    thanks, not so much a ‘standing; issue than a timing issue?

  13. Sam says:


    Snarky is as snarky does.

    I do understand the reasons for the individual mandate.
    I do not believe that the government that the people delegated 17 enumerated powers to in the US Constitution has been given the power to force me to purchase anything at all. As I said, if that is the case, why not peas and broccoli? Why not electric cars?

    There is no Liberty when the government can decide for you and force you, by the weight of their power, to make any kind of purchase of a product or service.

  14. samwide says:


    I do not believe that the government that the people delegated 17 enumerated powers to in the US Constitution has been given the power to force me to purchase anything at all.

    Factually wrong. We’ve discussed the Militia Act of 1792, passed under authority of the Militia Clause. And there are other examples of federally-mandated purchases under the Commerce Clause. See, for instance, the Flood Protection Disaster Protection Act of 1973:

    require[s] the purchase of flood insurance by property owners who are being assisted by Federal programs or by federally supervised, regulated, or insured agencies or institutions in the acquisition or improvement of land or facilities located or to be located in identified areas having special flood hazards.

    Federal mandates to purchase are not novel.

  15. Fog says:

    Too bad Sam can’t get drafted…

  16. Hey Norm says:

    The government isn’t forceing you to buy anything…go without insurance and pay the penalty and quit crying.
    The Government is protecting me from idiots like you who I am unable to protect myself from.
    A study in Washington State showed that unrecovered costs due to the un-insured added $900 a year to the premiums of the insured. Your active decision to not purchase insurance directly affects me. I should not be held responsible for your lack of personal responsibility. The fact that you are unable to understand this basic concept probably explains your decision not to purchase health insurance.

  17. Sam says:

    @Fog: @Fog:

    [Comment deleted for violation of comment policy — DM]

  18. Sam says:

    @Hey Norm:

    [Comment deleted for violation of comment policy — DM]

  19. mantis says:

    Wow, the Secret Service sure let Sam go quick.

  20. Hey Norm says:

    @ OTB Management…
    I can only speak for myself, but responses like Sam’s at 10:44 and 10:46 are troubling to say the least.
    They also are not unique to this thread…on another thread last week I believe they included bricks (rectangular) and sphincters (round).
    I hate to see anyone banned…I actually miss some of the previously banned insanity…but….

  21. @Sam:

    I was forced to delete two of your comments for violation of our comment policy.

    Please review it and act accordingly when commenting here.

  22. @Hey Norm:

    I deleted both comments as you can now see. Sam has been warned and future violations will be dealt with accordingly.

  23. Steve Verdon says:

    @Hey Norm:

    You are of course correct, because there isn’t much the Constitution does to restrain our government much anymore.

  24. Stan says:

    @Sam: Thanks for your reply. If Doug has anything to say on this issue, I’d be interested in reading it.

  25. Brett says:

    The annoying part about the Mandate’s design was that they could have designed it to be effectively iron-clad in its enactment, but they didn’t. All they would have to do is tie Medicaid and other funding to implementation of the Mandate at the state level, and the states would do it themselves (you might have some hold-outs, but few of the states can simply forgo Medicaid funding).

    In any case, the real question is whether or not the rest of the health care reform will come down with the Mandate if the latter is ruled unconstitutional in the Supreme Court. If it is, then expect political hell to break loose on both the Right and the Left, with 2012 being fairly ugly in terms of election season. If it doesn’t, then we’re headed for Single Payer Town, since a No-Mandate Bill would leave the No-Preconditions law intact, and thus set the private health insurance market on a path to destruction (I support Singaporean-style single-payer, so I’m okay with this).

  26. Hey Norm says:

    @ SV…
    Can you give me an example of a country that operates on the limited government you dream about?

  27. Boris Badenov says:

    @Hey Norm:
    Hey Norm,
    Better read your Constitution again to see what it ALLOWS the govt to do.

  28. Boris Badenov says:

    @Hey Norm:

    How about Switzerland?

  29. samwide says:

    Hey Norm asked:

    “Can you give me an example of a country that operates on the limited government you dream about?”

    @Boris Badenov replied:

    How about Switzerland?

    You mean this Switzerland?

    Healthcare in Switzerland is universal and is regulated by the Federal Health Insurance Act of 1994 (Krankenversicherungsgesetz – KVG). Health insurance is compulsory for all persons residing in Switzerland (within three months of taking up residence or being born in the country). International civil servants, members of permanent missions and their family members are exempted from compulsory health insurance. They can, however, apply to join the Swiss health insurance system, within six months of taking up residence in the country…

    Swiss are required to purchase basic health insurance, which covers a range of treatments detailed in the Federal Act. It is therefore the same throughout the country and avoids double standards in healthcare. Insurers are required to offer this basic insurance to everyone, regardless of age or medical condition. They are not allowed to make a profit off this basic insurance, but can on supplemental plans.

    That sounds OK to me. How about you?

  30. Hey Norm says:

    @ Boris…
    The Constitution allows the Government to regulate interstate commerce…and to protect me from un-insured boneheads.
    Also…I dig Natasha…

  31. s westberg says:

    Obama and obamacare are both unconstitutional and totally un American.

  32. Steve Verdon says:

    @Hey Norm:

    The United States prior to say….1930. You know, when the Constitution actually meant something.

  33. Steve Verdon says:

    @Hey Norm:

    The current interpretation also means they can regulate your backyard garden as well. It is basically a blank check to regulate everything and anything. Want to go live in a cave in the wilderness…they can regulate that too because you will no longer be participating in interstate commerce you are impacting interstate commerce. Neat, huh?

  34. mike says:

    the error in that arguement is that everyone in the country is not rquired to purchase flood insurance. only those participating in certain programs. for instance, not evryone is required to buy auto insurance, only those who choose to own a vehicle.

  35. LP says:

    I have been without health insurance for 12 years now and have only needed to see a doctor one time in that 12 years and paid my own bill, so how did I add $900.00 to anyone’s premiums. That is just another lie. My not having health insurance has not affected anyone except me.. People do not have insurance because they have no money to pay for it. How is the government mandate going to solve that problem. NOW those same people may not be able to buy their food that they need to have food more than insurance. Wake up and live in another man shoes before you judge why they have no insurance.

  36. mike says:

    Unlike some people, you pay your debts. costs are added to other peoples insurance because of THOSE that DO NOT pay their bills. instead of shifting the costs to responsible people, why doesn’t congress go after those that REFUSE to pay their bills. EVERY hospital will work with you to pay your bill if needed. you can pay as little as $5 a month if necessary.