Bench Memos

Obamacare Case Lands at the Supreme Court

As I forecasted Tuesday, the Eleventh Circuit Obamacare case is headed to the Supreme Court — and today it arrived on the doorstep. Three times.  

The National Federation of Independent Business and two private plaintiffs kicked off the file-a-thon by challenging the severability analysis of the Eleventh Circuit. While the district court in this case struck down the entire law as hinging on the mandate, the Eleventh Circuit took the extremely conservative route of striking down even less of the law than the Department of Justice had conceded was inextricably intertwined with the mandate.

The 26 states challenging the law also filed a petition today, adding two more questions presented of their own: whether hinging all Medicaid funding to the states on a dramatic expansion of coverage was permissible, and whether treating states like private employers for the purpose of the act violated their sovereign rights.

Not to be outdone, the federal government asked the high court to review the heart of the decision – whether there was constitutional authority for the individual mandate.  Apparently emboldened by the Fourth Circuit’s anomalous decision throwing the case out as a pre-enforcement challenge to a tax, they threw in a second question presented addressing whether the Anti-Injunction Act applies.

For those keeping track at home, that makes five potential questions presented. I don’t envy the clerks writing memos on this case, nor do I envy the lawyers trying to fit their arguments within page and time limitations if the Court grants on more than a couple of these issues. Of course, if it took Congress 2,400 pages to write the law, what’s a few more thousand or so to determine whether it’s constitutional?

With today’s developments the case is now on pace to be heard in the spring, and decided by the end of the term. Look for an exciting decision next June, right in the middle of election season!