This week has seen major developments in the court challenges to Obamacare. All the excitement notwithstanding, though, it’s still not clear whether SCOTUS will hear the Obamacare case before Election Day 2012.
On Aug. 12 the 11th Circuit in Atlanta sided with 26 states and the National Federation of Independent Business (NFIB) by striking down Obamacare’s individual mandate, but also sided with DOJ by holding that Obamacare’s massive Medicaid expansion is okay, and that the mandate could be severed from the rest of the statute.
On Sept. 26 the deadline passed for either side to ask the 11th Circuit to reconsider its decision. All they could now do was petition SCOTUS.
We didn’t have long to wait. On Sept. 28 Solicitor General Donald Verrilli filed a petition for certiorari (“cert petition”) for President Obama asking SCOTUS to take the case to uphold the individual mandate.
Earlier that same day, Jones Day lawyers Mike Carvin and Greg Katsas filed a cert petition for NFIB asking the Court to take the case to reverse the 11th Circuit on severability, asking SCOTUS to hold that the individual mandate is central to Obamacare so the entire statute must share the fate of the mandate.
If these were the only filings needed, then it would be certain that Obamacare will be heard by SCOTUS in the spring, with a decision in June 2012.
But there’ll be one more cert petition. Bancroft LLC partner Paul Clement is lead counsel for the 26 states. He has until mid-November to file a cert petition contesting the unconstitutionality of the Medicaid expansion (which could bankrupt state governments) and like NFIB to argue against severability.
The justices are not going to vote on Obamacare until they have all three petitions. If Clement takes the remainder of his time allowance to file, we’ll be close to the annual cutoff, past which any new cases are heard in fall of 2012.
Some people see DOJ’s quick filing of a cert petition (instead of waiting until November or requesting an extension to December or January) as a sign of confidence that they’ll win at SCOTUS.
That’s possible. It’s also possible that Team Obama believes that at most they’ll lose the individual mandate. Given that the mandate is one section out of 450 sections, the White House could then argue, “The Supreme Court has upheld 99% of Obamacare, and only found one minor flaw with it.”
So the waiting game continues.
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.
