Posted on September 26, 2011 at 4:43 pm by Lyle Denniston
The Obama Administration, opting not to try to slow down the pace of a major case on the constitutionality of the new health care law, passed up a chance Monday to get the Eleventh Circuit Court to reconsider its decision August 12 nullifying the law’s most crucial provision. That was the word being passed out quietly by the Justice Department on Monday afternoon, sources in Washington said.Â Since states involved in that case are also not expected to press for added review in the Circuit Court, the Administration’s decision enhances the possibility that the case could reach the Supreme Court in time for a ruling during the current Term — just months before a presidential and congressional election.
There already is one case pending at the Court on the constitutionality of the law’s requirement that virtually every American must obtain health insurance before 2014.Â But that case, Thomas More Law Center, et al., v. Obama (docket 11-117) is considered to be a weaker candidate for the Justices’ review than the Eleventh Circuit decision.Â However, there is now some significant conflict in Circuit Court rulings on the validity of the insurance requirement, adding to the chances that the Court will accept at least one case on the issue for review.
On Wednesday, the Obama Administration is scheduled to file at the Court its response to the Thomas More case.Â Earlier, in obtaining more time to file that response, the Solicitor General’s office had told the Court that it wanted a chance to coordinate its responses to the several cases developing in the Circuit Courts.Â Some indication of its strategy, beyond the Thomas More case itself, could emerge in the filing due Wednesday.
Monday was the deadline for the Administration to file for en banc review in the Eleventh Circuit case (Florida, et al., v. Health and Human Services Department, et al., docket 11-11021), and there had been fairly wide speculation that the government would in fact seek such a reconsideration — among other reasons, perhaps, to slow down the process in hopes that the Supreme Court would not reach a final decision in the midst of a national political campaign in the early summer of next year.
It remains possible, however, that even if the Court does accept one or more cases for review, and decides them by the end of next June, that the result would not necessarily settle the constitutionality of the insurance mandate.Â That is because two of the Circuit Courts have issued rulings that would enable the Justices — if a majority of them wished to have the opportunity — to throw out most if not all of the many pending challenges.
One of those reasons, of course, makes the Thomas More case itself a less compelling test case.Â In that case, the controlling opinion in the Sixth Circuit did not resolve the constitutionality of the insurance mandate.Â That opinion, by Circuit Judge Jeffrey Sutton, found that the challengers in that case could not go forward with a claim that the mandate was invalid in all circumstances (in other words, could not proceed with a “facial” challenge).Â Under that approach, no one would be able to pursue a challenge until after the mandate had actually taken effect in 2014, and someone was assessed a penalty for failing to have insurance by then.Â (At that point, such a challenge would be an “as-applied” challenge; that, incidentally, is the kind of constitutional challenge which the Court majority, led by Chief Justice John G. Roberts, Jr., finds more compelling.)
The other reason to avoid a ruling on the merits has been provided by the Fourth Circuit Court in its September 8 decision in the case of Liberty University v. Geithner (docket 10-2347).Â There, a majority of the panel concluded that the penalty for failing to have insurance is a form of tax, and that the federal Anti-Injunction Act thus bars anyone from filing a pre-enforcement lawsuit to prevent the collection of such a penalty.Â Â That approach has the capacity to scuttle virtually any challenge to the insurance mandate before it goes into effect some three years from now.Â If the Roberts Court had any inclination to stay away from a ruling on the merits of the insurance mandate in the coming Term, this approach would be conveniently available.