Google+
Close

Bench Memos

NRO’s home for judicial news and analysis.

The Obamacare Litigation: Cue Foot-Dragging



Text  



Today’s Eleventh Circuit decision holding Obamacare’s individual mandate unconstitutional is the biggest victory to date for critics of the health-care law and more bad news for a president who is already experiencing historically high disapproval levels. 

This decision creates a circuit split with June’s ruling in favor of the law, which is an important factor weighing in favor of the Supreme Court taking the case. That is a problem for the administration, because their strategy up until this point has been to delay the case as long as possible, so much so that they had to be ordered by the district judge to stop their procedural procrastination and file the appeal in the first place. Before today, the administration could claim they were waiting for disagreement among the circuits before advocating Supreme Court review. Now they have no more excuses. This case is the perfect vehicle for Supreme Court consideration.

The timing of the decision is key. The Department of Justice could appeal directly to the Supreme Court within 90 days, and the High Court would be very likely to take the case. Even if they ran out the shot clock and filed the cert petition on November 10, the case would almost certainly be heard during the 2011–12 term: just in time to be at the forefront of people’s minds going into the 2012 election. 

But DOJ could also appeal first to have the Eleventh Circuit hear the case en banc, i.e. with a panel consisting of all its judges rather than just the three randomly chosen for this case. The outcome would likely be the same — the law has already been upheld by a bipartisan majority that is likely to be predictive of the full court. That move would have tactical advantages for the administration, however, by pushing Supreme Court review into next term.  Not only would that keep the issue at bay until after the election, it would also allow even more time for states, businesses, and individuals to continue implementing (or at least wringing their hands over whether to implement) the law. Although judges should restrict themselves to considering the law itself, it is commonly assumed that they will be more hesitant to overturn a law if that would mean undoing massive government structures already in place. 

If Obama is lucky and can use time to his advantage, his health-care law itself might become too big to fail.

With the nation mired in economic uncertainty, the last thing struggling businesses need is uncertainty about billions of dollars worth of planning and compliance with historically expansive health-care regulation. This will be a test of how political the Obama DOJ really is: Will they move forward with a case everyone knows is destined to be decided by the Supreme Court, or will they play election-year politics with the most important Supreme Court case of our generation?

Cue the foot-dragging.



Text  



(Simply insert your e-mail and hit “Sign Up.”)

Subscribe to National Review