Certiorari or En Banc for Individual Mandate Appeal?

Politico reports that the Department of Justice has until Monday to decide whether to file a petition for en banc review in Florida v. HHS, the successful challenge to the constitutionality of the individual mandate in the U.S. Court of Appeals for the Eleventh Circuit.  If the Department of Justice does file such a petition, this will significantly decrease the likelihood that the Supreme Court will hear a challenge to the individual mandate in the 2011-12 term.  For a variety of reasons, including the range of issues presented and the participation of a majority of the states, the Eleventh Circuit case remains the most likely vehicle for eventual Supreme Court review.  Therefore, whether the Department of Justice seeks en banc reconsideration in the Eleventh Circuit or certiorari in the Supreme Court is likely to control the timing of eventual Supreme Court review.

Relatedly, according to the ACA Litigation Blog, the Justice Department’s deadline for filing a response to the petition for certiorari in Thomas More Law Center v. Obama, the case in which the U.S. Court of Appeals for the Sixth Circuit upheld the mandate, is Wednesday, September 28.