A couple of weeks ago the 11th Circuit Court of Appeals struck down the individual mandate in Obamacare. Since then we haven’t heard much about the case. I went to the Cato Institute’s Ilya Shapiro, who has been front and center in the litigation, to get an update on where things stand.
The administration could seek en banc review at the 11th Circuit. Shapiro, however, says this would be essentially a stalling technique, explaining that “there’s no chance it’ll be granted because the panel [that heard the case] is already 2-1 against” and four of the seven remaining judges on the 11th Circuit are appointed by Republicans and considered to be conservative. Moreover, since six members are needed to get en banc review (the dissenter from the panel, the three Democratic-appointed judges and two more), he contends, “it’s not gonna happen.” He therefore concludes, “Any request for en banc review, “will be purely a political move to play for time and push the Supreme Court decision past the election — no legal reason to do it — and the court would probably deny it quickly. The release of a decision not to grant en banc review (which doesn’t require a written opinion) could be delayed, however, by the writing of a dissent from that denial.”
When could the Supreme Court grant certiorari? Shapiro tells me, “The earliest the Supreme Court could grant cert (on the petition out of the Sixth Circuit) is today. More realistically, it would be the week before the term opens for argument the first week of October, right after the so-called long conference, when they review all the petitions that have come in over the summer.” However, in all likelihood, he contends the Supreme Court would wait for the appeal from the 11th Circuit (in which 26 states are represented).
As for the oral argument, there is a good likelihood, Shapiro explains that “this will get to the Court this term, with argument in the spring and a decision the last week of June.”
As of now, the 11th Circuit case is the law of the land for those states. Is a stay needed? Shapiro says, “No stay is needed because the individual mandate doesn’t go into effect until 2014, and that’s the only provision that’s been struck down. So we don’t need to go into the type of analysis we did after Judge Vinson’s [federal court] decision about what the federal government is authorized to do to keep implementing the legislation, in the 26 states or generally.”
The bottom line: Obamacare is out of the headlines now, but it is almost certain to return as a hot controversy just as we wrap up the presidential primary season and head into the political conventions next summer. This, I suspect, suits the Republicans just fine.