Wednesday, September 28, 2011


It may have looked like a non-event, but it was a significant one.

Monday September 26 was the last day on which the Obama administration could ask the Eleventh Circuit Court of Appeals to reconsider its three-judge panel’s ruling that the Affordable Care Act’s individual mandate was unconstitutional. The fact that the Justice Department took no action almost certainly means that its intent is to ask the Supreme Court to decide the issue.

The administration’s thinking was most likely dependent on three factors. First, given that the full Eleventh Circuit is considered even more conservative than the three-judge panel that struck down the mandate, the only advantage of a second hearing would have been to delay consideration by the Supreme Court. Against this was presumably factored the political risk of a further well-publicized rejection of the mandate providing additional ammunition for opponents of reform.  

Second, the administration may still be able to delay a Supreme Court decision either by filing its request for a hearing at the last possible moment in November, or even by asking for a filing extension—something that the Court might be willing to consider, given the potential impact of a decision in the middle of a presidential election.

Third, the administration may feel that the odds are somewhat in its favor. Although the current Supreme Court is usually regarded as having a conservative majority, the Justice Department will have analyzed prior decisions favoring federal powers by, for example, Chief Justice Roberts and Justice Alito. As a result, the administration may feel more confident of winning than many observers might expect.

Meanwhile, it’s unlikely that we will know more about timing until November, but the most likely—but by no means certain—schedule is for a hearing in early 2012 followed by a decision around the end of the 2011-2012 term in June 2012. Just in time for the election!   

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