August 16, 2011

What’s the next step for the Obamacare lawsuits?

By What’s the next step for the Obamacare lawsuits?

Author: Timothy Sandefur

The decision from the Eleventh Circuit Court of Appeals on Friday holding the Individual Mandate unconstitutional sets the stage for the Supreme Court to review the case in the coming months. The Eleventh Circuit was the second federal appeals court to consider the case; the first was the Sixth Circuit, which upheld the law some weeks ago. The plaintiffs in that lawsuit have already asked the U.S. Supreme Court to take the case—and PLF will be filing a brief next week in support of them. Likewise, the next step in the Eleventh Circuit case will also be a petition to the U.S. Supreme Court. Since those two decisions came out differently, and because this issue is so controversial, it’s pretty much guaranteed that the Supreme Court will take one or both cases. When and how exactly is anyone’s guess: the justices might decide to hold on to the cases for a while before hearing the arguments, and they can take all the time they want before rendering a decision.

What happens in the other cases in the meantime? Nothing, really. The Fourth Circuit is still considering the two cases from Virginia—Liberty University v. Geithener and Virginia v. HHS—and the D.C. Circuit Court of Appeals will be hearing oral arguments in Seven-Sky v. Holder next month. It’s possible, though I think it unlikely, that the Supreme Court will wait till all of these cases are decided before proceeding. (PLF filed briefs in the Virginia and Seven-Sky cases; and our own case, Sissel v. HHS, has been put on hold in the trial court until the Seven-Sky decision is issued.)

As to the implementation of Obamacare, that’s not clear. After Judge Vinson issued his ruling in the Florida case, there was a lot of question about whether bureaucrats should proceed with implementing the law in other states; Judge Vinson was forced to issue a second decision saying that they could proceed at their own risk, and of course they can, because these circuit courts can only decide cases within their boundaries. The Obama Administration has gone on issuing implementing regulations regardless of the decisions, and wise employers are getting underway to comply. And, of course, the Eleventh Circuit found that the Individual Mandate could be “severed” from other portions of the law, so those other things still remain in force one way or the other: “We first conclude that the Act’s Medicaid expansion is constitutional,” the court said. “The Act’s other provisions remain legally operative after the mandate’s excision.” So state and federal officials are likely to continue taking steps to put the other portions of the law into place, at least until the Supreme Court issues its decision—which could be quite a while.

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