Remember that 11th Circuit decision last month striking down the mandate? That ruling was issued by a standard three-judge panel; today was the deadline for the DOJ to decide whether to seek a rehearing of the case by the entire 11th Circuit. If they sought a rehearing, it would take months to draft the briefs, hold oral arguments, and then deliver a decision, which would all but guarantee that the Supreme Court wouldn’t take up the issue and render its own decision until after the election. If they declined to seek a rehearing, then they could appeal to the Supreme Court soon and have a landmark SCOTUS ruling on the mandate by election day next year.
Their choice: No rehearing. Next stop, the Supreme Court. Gird your loins.
But former acting Solicitor General Walter Dellinger, who has worked on briefs in support of the legislation, said the move should be read as a sign of confidence from the administration.
“This confirms what I had already concluded: That the government is confident that it’s going to prevail in the Supreme Court and would like to have a decision sooner rather than later,” Dellinger told POLITICO…
There are only five judges appointed by Democrats on the 11-judge circuit, and one them has already ruled to strike down the mandate. So far, many judges have ruled along the party lines of the president who nominated him or her. So it’s unlikely the government would have gotten a better response out of the full panel.
Good catch by Politico: The deck was stacked against the White House in the rehearing, so why risk absorbing an unnecessary blow by having a full panel of the 11th Circuit rule against them? On the other hand, Tom Maguire made the case this morning for why a Supreme Court ruling before the election would be a very bad idea for The One:
Obamacare does not poll well and Republicans will be campaigning on its repeal whatever the Supremes decide. And (just thinking out loud here) Obama might actually benefit from a Supreme Court ruling against Obamacare, since it would give him an excuse to give the people what they want. Put another way, if the Supreme Court upholds Obamacare it will be obvious that the only way to end it is to end Obama’s reign…
Delay is the only sensible choice for them. The strategic bet is that some of the folks who don’t like ObamaCare will figure that the courts will end it, and they will vote Democratic for other reasons. A Supreme Cout ruling against ObamaCare will energize Republicans; a Supreme Court ruling in its favor will double-energize them.
Interesting point, but having a conservative Court uphold the mandate would be a huge psychological boost for Obama and the left and might even help legitimize the program to independents who have been lukewarm about it until now. Don’t forget either that the White House is expecting Romney to be the GOP nominee. Even if grassroots conservatives feel energized by the Court decision, how jacked up can they be to replace Obama with … the architect of RomneyCare, who did more than anyone else until The One himself to introduce health-care mandates to America?
What I can’t figure out, though, is why O would run the risk of the mandate being struck down before the election. That would be demoralizing for the left and delegitimizing for Obama. What’s left of his first term if his signature domestic policy “achievement” ends up rubbished by SCOTUS as a violation of the Commerce Clause? I guess the thinking is that if the mandate is struck down, he can point to it as proof for liberals that they desperately need to appoint more left-wing justices to the Court and the only way to do that is to re-elect him. But even so, Obama’s not the kind of guy who wants to deal with X factors in the middle of the campaign: That’s why the Bush tax cuts were extended until after election day and why he insisted on a debt-ceiling deal that would carry through past November of next year. Now suddenly, by bypassing the 11th Circuit rehearing, he’s risking the Court dropping a flaming bag of shinola on his doorstep four months before the polls open. He must be awwwwwwfully confident that he’s going to win.