Now that we have opposing appellate court rulings on the health-care overhaul law - today’s against the individual mandate in the law, and a June ruling in the measure’s favor - the case is all-but-certain to hit the Supreme Court.
How does it get there? The Obama administration has 90 days, until mid-November, to appeal today’s Eleventh Circuit Court of Appeals ruling. It is expected to do so. “The Department of Justice believes - as the Court of Appeals for the Sixth Circuit held, and the dissenting judge in the Eleventh Circuit concluded - that the Affordable Care Act is constitutional,” the department said in a statement. “We strongly disagree with the court’s decision. We are considering the next appropriate steps.”
This turns the attention to the Fourth Circuit Court of Appeals, which is expected to rule on a health-care challenge sometime this month or next. A three-judge panel neard oral arguments in the case, which consolidates challenges brought by Virginia Attorney General Ken Cuccinelli and Liberty University, on May 10. All three are Democratic-appointees: Judges Andre Davis and James Wyan, both picked by President Obama, and Judge Diana Motz, chosen by President Clinton.
“The feeling was the panel in the Fourth in the argument was relatively solicitous of the government’s position,” said Carl Tobias, a law professor at the University of Richmond, who follows the Fourth Circuit closely. “Most people believe the judges will uphold the individual mandate and uphold the statute broadly.”
There are also two other cases in the mix. The Sixth Circuit Court of Appeals, based in Cincinnati, ruled in June that the law was constitutional. The plaintiff in that case, the Thomas Moore Law Center, has already filed an appeal against that decision. Another case, in the D.C. appellate court, is scheduled for oral arguments on Sept. 23.
No matter how the two undecided cases go, there’s enough disagreement already for the case to be taken up by the Supreme Court, which opens its next term in October. Many expect that the Supreme Court will consider the case this term, which means it has to issue a decision no later than June, 2012. Supreme Court experts expect the justices will take up oral arguments for the case in late spring, leaving enough time to issue a decision in June - right as the presidential election gets into full swing.
How the Supreme Court might rule is a wide open question. The court could strike down the entire law, or just the individual mandate - as Ezra wrote earlier, today’s decision suggests any ruling against the law would only touch the latter. On SCOTUSblog, former Justice Anthony Kennedy clerk Orin Kerr says he could see anything from a 6-3 to 8-1 decision in the law’s favor. Many others predict a 5-4 decision, with Kennedy as the swing vote. The one thing we do know for certain at this point: we’ll all be watching very, very closely.