Today’s Eleventh Circuit Court of Appeals ruling that the individual mandate is unconstitutional is tremendously significant. (I’ve posted excerpts here.) It reifies the seriousness of the anti-mandate arguments and makes Supreme Court review of the mandate’s constitutionality that much more likely. Unless the federal government seeks en banc review, and the full Eleventh Circuit reverses the panel decision, the Supreme Court will take a mandate case.
Since the beginning, mandate supporters have been busy working the refs, doing everything possible to suggest that arguments against the mandate’s constitutionality were well outside the legal mainstream. The idea was to suggest that no one but a partisan hack or ideologue could believe the mandate exceeds the federal government’s enumerated powers. Today’s decision will make such arguments that much more difficult to make. The two Circuit Courts to have considered the question have come to opposite conclusions, each by a 2-1 margin. Moreover, in each case a judge ruled against type — casting a vote contrary to what one might predict based upon the party affiliation of the President who appointed him. In the Sixth Circuit, Bush nominee Jeffrey Sutton voted to uphold the mandate. In the Eleventh Circuit, Clinton nominee Frank Hull voted to strike it down. This further illustrates that the constitutionality of the mandate is an open question, not clearly dictated by existing precedent. At the same time, as I note here, the argument championed by many academics that the mandate is a constitutional exercise of the taxing power has yet to be accepted by a single federal judge, let alone by a court.
Rush just had an interesting point. ObamaCare was passed by the Senate as a budget reconcilliation, not as a regular bill. Under the rules of budget reconcillation, a bill cannot have a signficant impact on the budget. The mandate was how they got ObamaCare to be scored as revenue neutral by the CBO.
Without the mandate, ObamaCare is no longer budget neutral.
I'd be very surprised if the courts would rule that the bill was not properly passed, since reconcilliation is a Senate rule and the court has a long history of staying out of such fights.
On the other hand, under the rules of reconcilliation, a bill that is not revenue neutral must expire in 7 years. (That's why the Bush tax cuts had to be renewed.)
If the SC does strike down the mandate but leave the rest of the bill intact, would that mean that ObamaCare must expire in 7 years unless it is renewed?
Reply to this commentLinkReport AbuseMy guess is "no."
I suspect the reconciliation rules are "procedural" - the bill has to be scored revenue neutral to even be considered (which it was). That's all it needed.
While I suspect the rules would also require any amendments to be "revenue neutral," once it's passed, all that stuff goes out the window.
I'll bet the Bush tax cuts were written with a sunset provision (as opposed to one being grafted on by the reconciliation rules).
Reply to this commentLinkReport Abuse"Unless the federal government seeks en banc review, and the full Eleventh Circuit reverses the panel decision, the Supreme Court will take a mandate case."
I think the reverse is true.
If the Eleventh Circuit creates a potential circuit split by reversing (with the 4th Circuit poised to review the Virginia case), then Supreme Court review becomes more likely.
The court's docket has plummeted in quantity since Rhenquist was its chief. And the most likely grant of certiorari has come in cases with either REAL circuit splits, or a potential one (with a circuit ruling opposite multiple district decisions).
I think review is likely, anyhow, given the number of cases pending throughout the federal system. But Adler has it backwards on the effect an 11th circuit reversal would have on the grant of cert.
I refer Adler to the Printz v. US decision, regarding the Brady background check provision. There was no actual circuit split. The split was between multiple districts and one circuit. That is a classic example of the court's primary motivation to grant review.
All the experts said we'd have to wait longer for more circuit opinions to tell if review was likely. Of course, once review was granted, they predicted the provision would be upheld.
:)
Reply to this commentLinkReport AbuseAs a working lawyer, I'd like to comment on the influence of popular commentary on judicial opinions and the concept of "working the refs." IT DOESN'T HAPPEN. No way, no how.
I like to read the commentary, but as a lawyer, I know that the commentariat's view is essentially a comic-book version of the Cliff Notes of the Reader's Digest condensation, while the actual case is a David Lean production of a Shakespearean drama. Even the most informed commentary has maybe five percent of the detailed discussion of points and legal authorities that will be contained in the parties' briefs. The judges will decide the case based on what is in those briefs (and what the cases they cite say). Public commentary, while interesting, is wholly irrelevant to the outcome. It is the judicial equivalent of passing out leaflets on a street corner.
Also: Doesn't the 11th Cir. decision create a split NOW with the 6th Cir.? No need to wait for an en banc reversal and a 4th Cir. decision.
Reply to this commentLinkReport AbuseThe 11th Circuit decision does create a split.
Obama may seek en banc review in the hope the entire 11th Circuit would reverse the mandate ruling, at which point there would no longer be a 'split' (if the entire 11th reversed the mandate ruling, then the 11th - like the 6th - will have upheld the mandate).
And he may seek en banc review because he doesn't want the issue front & center as he runs for re-election.
Reply to this commentLinkReport AbuseSorry, Mr. Working Lawyer, but history has repeatedly shown the WH "working the refs". The most notable instances are LBJ and RMN's regular meetings with Earl Warren. Although this is most often done at the staff level in recent years, redactions from the WH call log under Obama make it impossible to verify from the public record whether the principles are talking at present.
Reply to this commentLinkReport AbuseIn my opinion, the ruling today by the 11th CCoA is not a defeat for the Obama Administration. If one of the Progressive's goals has been to destroy the private,and in some cases for-profit, health insurance industry, this will achieve their goal. More than a few on the Left will view this as a victory. Most will be smart enough not to say so, however.
Reply to this commentLinkReport AbuseThey'll say "we tried to avoid single payer, but the courts won't let us - so we have to fund it with taxes."
Reply to this commentLinkReport Abuse"Also: Doesn't the 11th Cir. decision create a split NOW with the 6th Cir.? No need to wait for an en banc reversal and a 4th Cir. decision."
I forgot about the 6th Circuit ruling. Thank you. We are on the same page. You revealed Adler to be even more wrong than I thought he was.
I would caution not to equate the 6th and 11th circuits. The 11th circuit is tied for 2nd-most inhabited by strict constructionists.
1 -- 5th Circuit;
2 -- 10th and 11th Circuits
I think the likelihood of a reversal is low, and I think en banc review is even less likely.
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