Things have changed on Obamacare since my last post this morning.
As of this morning, I had received DOJ’s cert petition to the Supreme Court asking the justices to take the Obamacare mega-case involving 26 states and the National Federation of Independent Business (NFIB). I also received the petition filed by Jones Day for NFIB. My earlier post made the point that we still needed to hear from the 26 states, and that SCOTUS wouldn’t act until they had all three.
Well, now they have all three.
Former Bush Solicitor General Paul Clement filed Bancroft LLC’s petition on behalf of the 26 states yesterday. It doesn’t yet show up on SCOTUS’s docket, but the copies have been filed with the Supreme Court Clerk. So all sides have now officially asked SCOTUS to decide profound questions of federal power.
Unless something unexpected happens, the Court will likely vote in November to take the case. That probably means an argument in March or April, with a decision at the end of June 2012.
Reading the petitions with a lawyer’s eyes, you cannot help but have enormous respect for the ability of all sides.
Clement’s cert petition is picture-perfect. He makes an outstanding argument that Obamacare’s Medicaid expansion is an unconstitutional coercion of the states, exceeding Congress’ power under the Constitution’s Spending Clause and therefore violating the Tenth Amendment. It further cements his reputation as one of the finest Supreme Court litigators of this generation.
NFIB’s cert petition by Mike Carvin and Greg Katsas is likewise outstanding. They focus exclusively on arguing why Supreme Court precedent dictates that Section 1501 of Obamacare—the individual mandate—cannot be severed from the hundreds of other provisions of the statute, such that striking down the mandate means the whole law must go.
And President Obama appointed an exceptionally-talented lawyer in Solicitor General Donald Verrilli. His cert petition for HHS makes a strong case—though still wrong and with frightening implications—as to why SCOTUS should uphold the individual mandate.
This is a clash of titans. And Florida v. HHS is a historic case that will doubtless be a major factor in next year’s elections.
Examiner legal contributor Ken Klukowski is director of the Center for Religious Liberty at the Family Research Council and a member of the faculty at Liberty University School of Law.
