So reports the ACA Litigation blog. I’m quite surprised, as normally DOJ would delay a case like this as long as possible– and try to eliminate the split — with a petition for rehearing. So it looks like it’s on to the Supreme Court, with a DOJ-filed petition for certiorari coming soon. That would make it extremely likely the Supreme Court will take the case, and presumably the Court would be able to hear the case this Term and decide the case by late June 2012.
There are lots of possible reasons why the Administration might have decided not to seek rehearing. Without personal knowledge of which mattered, I don’t think we can do more than just speculate as to the reason or mix of reasons. Perhaps they simply concluded that the prospects of success in a petition for rehearing were remote, and that the 11th Circuit judges who might write opinions respecting the denial of rehearing would hurt the government more than help it. Perhaps they figured that the Eleventh Circuit was the best vehicle for review, so it was better to petition from that case. Perhaps they just figured that it’s in everyone’s interests to resolve a facial challenge sooner rather than later. Perhaps the Obama Administration wanted the case decided in the middle of the Presidential campaign, for reasons of either electoral or litigation strategy. Alternatively, perhaps the recent oral argument in the DC Circuit convinced them that Silberman and Kavanaugh were likely to vote to strike down the mandate and write a better opinion doing so than had the 11th Circuit, making review of the 11th Circuit’s decision more desirable for the government’s side. Or perhaps they shook up the Magic 8 ball, asked if they should petition for rehearing, and it came up, “my reply is no.” It’s hard to say.
Meanwhile, the folks that should be most excited about DOJ’s decision are the new set of Supreme Court law clerks. Their Term just got a lot more interesting.
Doctor Chim Richalds says:
I think it’d be hilarious if the Supreme Court denied cert.
September 26, 2011, 6:34 pmJack Miller says:
I think the decision to now send it on to the Supreme Court may be merely a political calculation. Reelection prospects look dim right now for Obama. Without a decision, that won’t change. A completed “Hail Mary” pass (Obamacare upheld) would potentially give a boost and possibly help win another term. Although, if upheld, the opposite might very well happen… a renewed surge to bring Repubs to the White House and Senate majority in order to overturn the law.
Jack
September 26, 2011, 7:05 pmohgoodgrief says:
From your lips to God’s ear!
September 26, 2011, 7:36 pmMichael Masinter says:
The Eleventh Circuit can rehear the decision on the motion of any sitting judge and the vote of the majority of the court; a party’s decision not to seek en banc rehearing does not deprive the court of that power. From the circuit’s internal operating procedures in association with F.R.A.P. 35, here is I.O.P. 35(6)
6. Requesting a Poll on Court’s Own Motion. Any active Eleventh Circuit judge may request that the court be polled on whether rehearing en banc should be granted whether or not a petition for rehearing en banc has been filed by a party. This is ordinarily done by a letter from the requesting judge to the chief judge with copies to the other active and senior judges of the court and any other panel member. At the same time the judge may notify the clerk to withhold the mandate. If a petition for rehearing or a petition for rehearing en banc has not been filed by the date that mandate would otherwise issue, the Clerk will make an entry on the docket to advise the parties that a judge has notified the clerk to withhold the mandate. The identity of the judge will not be disclosed.
http://www.ca11.uscourts.gov/documents/pdfs/BlueAUG11.pdf
September 26, 2011, 8:37 pmDon de Drain says:
I don’t agree that Obama’s re-election prospects are “dim.” “None of the above” is probably the favorite candidate (out of those actively seeking the Presidency) of lots of people right now, but as long as Republicans keep looking for their Presidential nominee among the current crop of candidates, Obama will win.
That being said, I agree that the decision to not seek rehearing is largely a political calculation. I suspect that Obama’s thinking is that a Supreme Court loss in May or June of 2012 will help mobilize voters favorable to him in November 2012, while a Supreme Court win is a political win on Health Care. Better to win or lose before the election than afterwards.
I express no opinion on whether that thinking is correct. I’ll leave that to the omniscient posters on this blog.
September 26, 2011, 9:27 pmW. J. J. Hoge says:
Or it could be a political calculation that went like this:
The case goes to the Supreme Court, and we win. We will energize our base with the victory.
It goes to the Supreme Court, and we lose. The Republicans now don’t have an issue to campaign against with Affordable Heath Care of the table, but we can go to our base and say, “See, it’s import to have control of the next Court appointments. Get out and vote.”
September 26, 2011, 9:49 pmRoger Lodger says:
Let’s say Obama is the decision maker but he basically relies on the advice of three people. If these three agree not to petition for rehearing, but each has a reason the other two disagree is a good enough reason, can Obama conclude there’s a consensus on what action to take (or not take)?
September 26, 2011, 9:51 pmAnderson says:
I suspect that Obama’s thinking is that a Supreme Court loss in May or June of 2012 will help mobilize voters favorable to him in November 2012
Possible. I can see Obama’s team *thinking* like that. But they’ve been so clueless politically, their calculation likely bears no relation to reality.
September 26, 2011, 9:53 pmDon de Drain says:
Anderson–
Clueless doesn’t begin to describe Obama’s political team (which includes Obama himself) when it comes to governing on many (but not all) issues –as opposed to campaigning. They haven’t just failed to advance Obama politically. Rather they have significantly hurt Obama politically. Obama is lucky that the Republicans have (generally speaking) alienated more people than he has.
September 27, 2011, 12:08 amB-Rob says:
Ha ha ha ha ha ha! Dim? Oh, that is rich!
September 27, 2011, 12:43 amB-Rob says:
I think Obama wins no matter what the Supreme Court decision is. Let’s say the Supreme Court upholds Obamacare: win.
Let’s say the Supreme Court has not yet decided Obamacare by the time of the election: win, because Obama can campaign on “What is the GOP plan?”
Ditto if the Supreme Court overturns the entire statute: “What is your plan to solve the problems addressed by the Affordable Care Act, GOPers?” We know that, more than 16 months after the passage of Obamacare, there still is no GOP plan. This will be exposed during the campaign.
If the Supreme Court only overturns the mandate, I think that would be the worst political outcome for Obama. Why? It gives a very narrow issue relating to an unpopular aspect of the statute, but creates a huge problem for insurers that will have to be addressed. This will require working with an increasingly nihilistic House GOP that is intent on wrecking this country so long as there is a 1 in 10 chance that Obama will go down the tubes with it.
September 27, 2011, 12:50 amB-Rob says:
Better yet, it throws the ball back in the GOPs court to actually come up with ways to solve the pre-existing condition, affordability, uncompensated care, adverse selection, and lifetime caps problems that were addressed in Obamacare. Now THAT would be an interesting sight to see . . . GOPers required to actually solve problems, instead of just flapping gums about “common sense, market based solutions” to problems that have no real market based solution and which defy common sense.
September 27, 2011, 12:54 amB-Rob says:
It is interesting that you concede that upholding Obamacare might help Obama. I have been wondering how long it would take conservatives to acknowledge that the statute, in its totality, will prove popular. You just sorta did, and I commend you for your honesty.
September 27, 2011, 12:58 amyankee says:
Another issue is that it’s at best even odds that Obama is still President in two years. If the case isn’t decided until after he loses the election, the conservative majority on the Court may feel much more emboldened to strike down the statute. Worse, President Perry may order the Department of Justice to stop defending the law.
September 27, 2011, 1:01 amBruce Hayden says:
Or, they could just say that we just can’t afford to solve this problem in the midst of the Great Recession, and that the best thing that they could do for the economy is to just do nothing in this area.
Which do you think is most likely? Esp. given the reality that the Republican majority in the House was at least partially, and maybe greatly, a result of the opposition to ObamaCare by a majority of the American public.
September 27, 2011, 3:05 amB-Rob says:
Somehow, I think that once the hospital and insurance lobbies start yapping over the end of the mandate, which will hit their bottom lines, and once the old folks see the Medicare D donut hole reopen, and the young people start being dropped from their parents insurance coverage, and people start getting whacked again by pre-existing conditions bans — methinks the GOP will need to come up with some solution. It will be a warmed over Obamacare, probably down to the misplaced commas in the original legislation. Maybe without the “mandate” but with something that looks an awful lot like a mandate. And it won’t be called Obamacare (even thought it will be Romneycare/Obamacare close to Obamacare), but will have some GOP focus group tested name with the words “American,” “America,”"patriot,” or “freedom” in the title. Because, at the end of the day, if there is no Obamacare, you still have all the problems Obamacare solves.
Lastly, as I list all the solutions contained in Obamacare, to my knowledge, only the mandate seems to frost the teabagger types . . . the idea that government can force you to get your own insurance instead of having the ability to socialize all your health care expenses by simply not buying insurance. Ron Paul’s aide, who died owing $400,000, is a case in point of how hospitals, in the end, get socked with the cost of uncompensated care. Because, after all, the guy died three or four years ago and “charitable” efforts have only resulted in $40,000 being raised against that debt. If that be the case, then the Supreme Court may issue a narrow ruling against the mandate, leave the rest of the statute intact, and throw the whole adverse selection/uncompensated care problems back in the recalcitrant GOPs lap, with insurance companies and the hospital lobby snapping at their collective heels for some solution to an obvious and costly problem.
September 27, 2011, 8:46 amIP98 says:
The government sees a problem. The government must do something. The ACA is something. So what if it’s expensive, will cause other unforeseen and foreseen problems, and infringe on personal freedoms, by gosh we’ve done something.
September 27, 2011, 8:52 amB-Rob says:
Do you honestly believe that? C’mon . . . .
Perry is laughably ignorant, and everyone knows that stupid will not play well in a world where we face big issues like the deficit. Romney is the better option, but he cannot win two of this three “home states,” and his opposition to the GM and Chrysler bailouts would tend to doom him in Ohio and Missouri. But most importantly, I simply cannot see the goo goo cultural conservatives getting exercised about a Romney candidacy. And if you think Latinos will flock to the GOP simply because they put a Latino on the ticket, then all I have to say is “Vice President Palin” and “President Al Sharpton.”
September 27, 2011, 8:52 amTuesday Highlights | Pseudo-Polymath says:
[...] to the top court … for political reasons of [...]
September 27, 2011, 9:02 amB-Rob says:
That is a wonderful statement of a philosophical opposition to action and a great slogan for doing nothing. But how, pray tell, would you propose actually addressing the problems?
We are not now, and never have been, living in some libertarian utopia where government exists only to provide an army. Indeed, the moment the words “general welfare” were added to the Constitution, any libertarian utopia was essentially overruled in favor of some other kind of government structure. “Do nothing and let the market work” sounds fine until the last community hospital in your area closes because of uncompensated care after years of employers not offering health care because insurance is too expensive because it has to pay for . . . uncompensated care.
In short, if you think the GOP can get away with a “do nothing” answer after the Dems offer and push through a plan that actually addresses many of the health care system’s problems, I would contend you are delusional. Please try again.
September 27, 2011, 9:21 amMark Buehner says:
I would bet this wasn’t a political decision- why would Obama want perhaps the most unpopular provision of his signature law in the spotlight during campaign season? From his point of view it is simply reminding people of all the wrong aspects of the law.
I suspect this was the DOJ being a bit smug on their prospects here. This could backfire completely- there was a possibility the Court prefers to sidestep this decision and see if it works itself out politically in the next election.
September 27, 2011, 10:03 amWill the Supreme Court Repeal Obamacare’s Individual Mandate? | RedState says:
[...] next summer Three reasons the White House is taking health reform straight to Supreme Court Obama Administration Decides Not to Petition for Rehearing in Eleventh Circuit Mandate Case Hans von Spakovsky at the Heritage [...]
September 27, 2011, 10:03 amJohn D says:
Surely if the DOJ isn’t defending the Health Care Act, the Bipartisan Legal Action Group in the House must be springing into action. Is Boehner going to let a statute, validly passed in Congress, go undefended in the courts? We should expect BLAG to spring into action on this any day now, making sure that the HCA gets a fair hearing in all circuits. Maybe Paul Clement can take this case too.
September 27, 2011, 10:46 amBob from Ohio says:
Opinion in late June, few of those horrors will happen by November.
“We must come up with market based solutions. I will appoint a blue ribbon commision, asking emminent Americans blah blah blah.
The best solution to health insurance coverage is to focus on my jobs plan, so that millions of Americans left unemployed despite the massive government spending by this failed president blah blah blah”
Not too hard to punt on this.
September 27, 2011, 11:08 amB-Rob says:
Well, you are obviously assuming that the Supreme Court would only address the mandate, and would not strike the entire statute. In fact, there is no telling WHAT the Supremes would strike if they determined that the mandate (the only issue being appealed I imagine) is deemed unconstitutional. You will recall that the District Court judge in Florida effective ruled the entire statute unconstitutional because the mandate was not severable; the 11th Circuit ruled that the mandate was severable, and only struck that portion. The plaintiffs may cross-appeal the 11th Circuit’s decision that the mandate was severable and the remainder of the statute survives, less the mandate.
Note: I am not sure what the filing deadline would be on appealing that ruling. But I am willing to bet they will move to challenge the severability issue.
As such, Obama may be campaigning on ALL THE HEALTH CARE ISSUES underlying Obamacare, not just the mandate. Meaning, the GOP had better come up with a platform explaining how they will deal with the non-mandate problems addressed by Obamacare — donut hole, pre-existing conditions, etc.
Lastly, I am waiting for the rebranding campaign, when GOPers realize that using the word “Obamacare” merely links his name with all the goodies in the statute, such as the premium subsidies, closing the donut hole, state level health care exchanges, etc. If all of Obamacare was unpopular, this would not be a problem. But since the pieces (save the mandate) are all quite popular . . . well, I think you get the point.
September 27, 2011, 11:21 amB-Rob says:
Simply wrong. June 2012 to November 2012 is a LONG time. If the statute, as a whole, is declared unconstitutional, you revert to the old statutory language and the donut hole reopens, for example. There is some question whether the feds should “claw back” all the millions they have sent to the states to implement the now-unconstitutional statute; that may begin with cuts in Medicare during the new fiscal year, starting in October. Insurance companies would reimplement their pre-existing conditions, if not start dropping customers for excessive claims . . . they way they did before Obamacare. In other words, repeal creates a lot of consequences for Medicare, Medicaid, insurance coverages, state funds, etc. that conservative who want to “repeal Obamacare” NEVER address.
I would not be surprised if the Supremes merely held the case over for re-argument in the 2012-13 term. They have done that before on politically charged cases; no reason they would not do it again.
September 27, 2011, 11:28 amB-Rob says:
I think this would be the smartest thing to do. It does not help the GOP as much as upholding the statute would help them, though.
Indeed . . . the more I think about it, the smartest thing for the GOP to have done would have been to oppose oppose oppose Obamacare, as unconstitutional, but not file a lawsuit that actually addresses the question. I simply do not see how they gain any advantage by having any decision one way or another during 2012.
September 27, 2011, 11:32 amBob from Ohio says:
Not that long. Insurance companies and government bureaucracies do not move as fast as you believe.
Even if they do, the negative effects will not have time to impact a significant number of voters so as to change their minds that Obamacare stinks. “After all, the Supreme Court just declared it illegal, it was a bad law all along, just like we thought.”
You are wishcasting, acting mainly from the assumption that the stupid voters would love Obamacare if they just understood it. Your side has had years to make the sale, it has not done so.
Obamacare has been a political drag on Obama and the Dems. 5 months is not enough time to reverse that drag.
September 27, 2011, 11:49 amTuesday round-up at the nclawtalk blog says:
[...] agree that the Court is likely to review the health care cases during its October 2011 Term. At the Volokh Conspiracy, Orin Kerr reviews possible reasons why the government declined to seek en banc review and [...]
September 27, 2011, 11:57 amJustice Dept. Forgoes 11th Circuit Appeal « Asclepius & Justitia says:
[...] Kerr at Volokh Conspiracy breaks down the DOJ’s [...]
September 27, 2011, 12:33 pmSarcastro says:
The other side is wishcasting, because it is your wish that will come true!
Because Social Security and Medicare were popular from the moment they were passed. It’s super easy to predict what the electorite will be worrying about in a year, and how they feel about it.
[Though I will admit that even given the recockulous amount of political uncertainty that exists, putting health care in the midst of the general election is better for Obama than most of the alternative issues.]
September 27, 2011, 12:51 pmBob from Ohio says:
They actually were.
From Gallup
“In 1964, 61% of Americans approved when asked the following question: “Congress has been considering a compulsory medical insurance program covering hospital and nursing home care for the elderly. This Medicare program would be financed out of increased Social Security taxes. In general, do you approve or disapprove of this program?” Another poll conducted that year found 57% approving of the concept. Medicare became law less than a year later.”
The Social Security Act is too old for modern polling but the vote was overwhelming from both parties:
“The Ways & Means Committee Report on the Social Security Act was introduced in the House on April 4, 1935 and debate began on April 11th. After several days of debate, the bill was passed in the House on April 19, 1935 by a vote of 372 yeas, 33 nays, 2 present, and 25 not voting.”
“The bill was reported out by the Senate Finance Committee on May 13, 1935 and introduced in the Senate on June 12th. The debate lasted until June 19th, when the Social Security Act was passed by a vote of 77 yeas, 6 nays, and 12 not voting.”
September 27, 2011, 1:04 pmB-Rob says:
Bob, I am from Columbus originally. Where are you from?
Anyhow, insurance companies surely know how to change products, drop enrollees, deny claims, re-establish pre-existing conditions bars, i.e., return to the old policies that, under previous state law, were all legal and only made illegal by Obamacare. Four months is plenty of time . . . especially in Ohio, where you have GOPer governor who is hostile to Obamacare and would greenlight the Department of Insurance to OK any changes that undercut Obamacare.
Second, not sure why you think that the donut hole, for example, would not kick in automatically. Remember, if Obamacare is gone, so are the implementing regulations. Law reverts to the Bush era donut hole. I note you offer no explanation why this is wrong. Mainly because it is not.
Every survey I have seen of the 13 elements of Obamacare shows that 10 of them are quite popular and three (the mandate, the Caddilac plan tax, and the reduction in Medicare spending, if I recall correctly) were middling or unpopular. Do you know of anyone who opposes the lifetime expense cap being lifted? Or who opposes the elimination of pre-existing conditions? Or who opposes the tax breaks to businesses, the funds to states for setting up the exchanges, etc.?
In fact . . . do you remember the threatened shut down of government in August? A friend of mine with the Social Security Administration informed me that, had the shut down occurred, the checks would not have gone out. That was the Obama administration’s strategy for dealing with GOP recalcitrance — give ‘em a taste of what their “small government” approach really means. Likewise, elimination of Obamacare would, if I were Obama, mean immediately reopening the donut hole (indeed, I would issue the preliminary regulations right after oral argument); sending out notices of overpayment to the states (“Yeah, you owe us $40 million that you got to set up exchanges that will no longer exists. So we will delete that from September’s payments to the state.”); and immediately dismantle all the enforcement mechanisms.
What’s that? That’s not fair? That is “scaring” people? Well, cons, what is your plan to address the problems, then? Let’s have them!
See the only thing worse than Obamacare, Bob, was the system prior to Obamacare . . . when a friend’s business in Westerville was hit with 30% annual increases in health insurance payments before Obamacare, and people could be rejected for coverage due to pre-existing conditions, 20% of people are uninsured with no means to get insurance, and hospitals closing in Cleveland because of years getting stuck with uncompensated care expenses.
The GOPers, for all the whining and bluster about “repeal Obamacare,” are more than 16 months out from its passage, and still have done nothing to offer an actual alternative. Do you REALLY think Obama would let them get away with that going into the November election, whether Obamacare has been overruled or not? Pu-leese. Remember, he is a “Chicago thug” [ha ha ha ha!] with a billion dollar campaign warchest. The conservative Achilles’s heel will be pierced, and often. And that heel revolves around the fact that conservatives really don’t want to do anything to solve the health care problems, otherwise they would have tackled it when they had control.
September 27, 2011, 1:06 pmPeter says:
No politics too it, just legal strategery.
They are seeking to prevent the Sup Ct from having a stronger decision (voiding the law) to work with, as might have happened if Silberman wrote one. Why risk having some of the best legal minds in the country (judges on the DC Circuit Ct) disembowel that monstrosity when you can limit future exposure to the ‘radical’ conservative justices, whose views can be dismissed as ideological or driven by their supposedly pro-business bias? Justice Thomas can be written off as biased by the liberal press and Dems in wa way that Silberman cannot.
Having the DC Circuit void the law would have looked very bad, as it sort functions as a super appellate court.
The odds against it being held void in the Sup Ct are still less than fifty-fifty. It all depends on whether Tony K feels under-appreciated and unloved next spring.
September 27, 2011, 1:19 pmAnonymous says:
I agree there may be some political calculation involved, but respectfully disagree with the interpretations offered by other posters.
Opposition to Obamacare has energized and unified Republicans, along with many businesses (small and large), campaign donors, independent voters, and even some Democrats. The result was an overwhelming defeat for Democrats in the 2010 election, not just at the federal level but at the state and local level as well.
Many Republicans will run in 2012 on a platform that includes repealing Obamacare.
Perhaps the best thing for Democrats in 2012 is if the Supreme Court strikes down Obamacare, effectively removing that issue from the table.
That may be one reason the Obama administration prefers a dispositive decision this Term. And why a majority of the Supreme Court is unlikely to grant that wish. Four votes can grant cert, but five are needed to decide the case on the merits. The Court could rule the matter is not ripe (vacating the decisions below), or simply hold the cert petitions in abeyance until decisions from other circuits reach the Court, or otherwise avoid a decision on the merits this Term.
This would leave repeal of Obamacare as a central issue in the 2012 elections.
Alternatively, if the Supreme Court upholds Obamacare on the merits this Term, then judicial nominations immediately become a central issue in the 2012 campaign. It already is a major issue behind the scenes, but rarely gets much attention from the mainstream media.
For more than four decades, the issue of judicial nominations has energized conservatives, and it will do so again in 2012. By contrast, comparatively few Democrat voters pay much attention to judicial nominations, and they are unlikely to start now.
In short, the best hope for Democrats in 2012 is if the Supreme Court grants review this Term, and strikes down the law by June 2012.
September 27, 2011, 1:20 pmB-Rob says:
But what, pray tell, would the GOPers do with the PROBLEMS Obamacare addressed, huh? There is a reason the GOPers never explain what their planned replacement for Obamacare is, because they don’t have one.
I keep hearing GOPer cons rail against Obamacare, but never hear an actual solution, for example, to the uncompensated care problem, which is a major driver of hospital and insurance company support for the statute. Think of Ron Paul’s aide dying with $400,000 in unpaid bills because his pre-existing condition made it impossible to get insurance coverage. And of that $400k, only $40k was paid, meaning the hospital had to eat the rest and pass that costs onto other patients via insurance. What is your solution for this problem? And don’t say “charity” . . . because relying on charity has left the hospital $360,000 short.
Obamacare being repealed takes Obamacare off the table; but it just puts the problems Obamacare solved BACK ON THE TABLE. As such, as I have noted before, the only thing worse for Obamacare from a GOPer perspective is NO Obamacare. If you have Obamacare around, you can have something to rile the base with, then do nothing to repeal it if the GOP takes over . . . because, frankly, it solves more problems than it creates. But if the statute as a whole is repealed, then GOPers will be forced to, finally, put their money where their mouths are, and solve the health care problem.
September 27, 2011, 1:31 pmB-Rob says:
But apparently Silberman questioned whether the case was ripe. As such, I doubt this entered into the calculus, especially given questions when the DC Circuit would rule, or how.
However, might I note your implicit admission that the 11th Circuit panel’s work was . . . how to put this nicely . . . less than persuasive? You think it was more persuasive than Jeff Sutton’s opinion in the 6th Circuit? The 11th Circuit drew artificial lines on congressional authority, whereas Sutton noted that, after Raich, there really are no lines.
September 27, 2011, 1:37 pmB-Rob says:
I agree for the reasons I have explained before. In fact, as an Obama supporter, looking at the unimpressive field opposing him (this means you, Mitch Daniels), I think it is a 60/40 proposition that he wins re-election. Perry is an idiot, and I trust the GOPers will not nominate an idiot. Mitt cannot win his home state, and he cannot run against a national version of the same statute that worked in Massachusetts.
September 27, 2011, 1:40 pmSarcastro says:
Which is why the field is wide open for PALINAPALOOZA 2012!
September 27, 2011, 2:42 pmyankee says:
I do not share your optimism. Sure, the GOP candidates look less than stellar, but Obama is facing 9% unemployment with millions of others who are underemployed or have dropped out of the labor force. Others have seen their hours cut, cost of living adjustments eliminated, bonuses slashed or abolished. They fear they will be next on the chopping block. Who are they and their friends and family going to blame: Mitt Romney or Barack Obama?
September 27, 2011, 3:29 pmAdmiral says:
I do agree that the reports from the D.C. Circuit may have made what looked like the better course legally into more of a crap shoot. And, I think whether you like the President or hate him, he’s willing to make bold, albeit calculated moves. This smacks of one of those. If they win in front of the Supremes, they’ll use that to shore up the President’s position. If they lose, they’ll use that to rally their base. Of course, a ruling from the Supremes in favor of the President here may rally the Tea Party, but it is hard to imagine how much more juicing they need at this point.
So, all in all, a fair bet in the end. But, consider this, it is a pretty sure bet that the Supremes will not invalidate the entire health care law and, if they go with the 11th Circuit’s position, may only invalidate the individual mandate and that’s it. Given that there are politically popular or less controversial aspects of the new law, such as the exchanges, this will put both parties in an interesting position after November – especially with generally unpopular insurance companies being the ones to lead the charge about the abolition of the individual mandate.
September 27, 2011, 4:00 pmzuch says:
… because everyone just hates health care for all. Why don’t those people just die already?….
Cheers,
September 27, 2011, 6:52 pmBlogger vs. Blogger: The Reasons Behind the Obama Administration’s Decision on the Multistate Lawsuit Against the Health Reform Law « AHLAlerts: American Health Line’s Blog says:
[...] similarly argues that the administration could have “concluded that the prospects of success in a petition for [...]
September 28, 2011, 2:45 pmJim says:
If the statute is upheld, good for Obama. If the statute is struck down, good for Obama, since he runs against the activist right wing Court. A no lose, I think that is clearly a smart move.
September 28, 2011, 11:04 pmWhy Obama wants the Supreme Court to decide ‘ObamaCare’ in 2012 (The Week) | Elections News says:
[...] that the prospects of success” in the conservative 11th Circuit Court of Appeals were remote, says Orin Kerr at The Volokh Conspiracy. Why spend any more time than necessary in an unfriendly forum? A subsequent opinion from the [...]
September 29, 2011, 12:48 pmWhy Obama wants the Supreme Court to decide ‘ObamaCare’ in 2012 (The Week) | Cirklenews.com says:
[...] 3. Team Obama wants to avoid another appeals court defeatThe Justice Department might have “simply concluded that the prospects of success” in the conservative 11th Circuit Court of Appeals were remote, says Orin Kerr at The Volokh Conspiracy. [...]
September 29, 2011, 12:54 pmDemosthenes says:
You can’t know a falsehood. The GOP has a plan. Congressman Paul Ryan )R-WI) has drafted it. The House passed it as part of the budget in May. Then the Democrats in the Senate killed it. Now Ryan is talking up a modified version. You may not agree with Ryan’s proposal. You may think it’s awful. But it is a plan.
Why you didn’t know this, I don’t know, since it was news earlier this year and it is news again now. There is a lesson here for you, though: just because you stick your fingers in your ears and go “la-la-la” for five minutes doesn’t mean you can justifiably claim that somebody else didn’t say something in the interim. It only means that you were ignorant of it through your own devices.
September 29, 2011, 1:20 pmDemosthenes says:
A vacuously true conditional, since the antecedent is false. I am unaware of any universe in which “not appealing for an en banc hearing of a lower court ruling, and instead appealing to a higher court” equates to “not defending the Health Care Act.” Given the conditions in the Eleventh Circuit, one might say that appealing for cert to the Supreme Court is in fact the best way forward in DOJ’s defense of PPACA.
Logic…why don’t they teach them logic in these schools…
September 29, 2011, 1:26 pmDemosthenes says:
Really. You see no way at all?
For your consideration.
Now, I am perfectly prepared to admit that it might not work out the way Jacobson posits. Given the possibility of a changing political environment, a decision in June 2012 might have any number of effects on a November 2012 election. This could bounce almost all one way, or almost all the other, or nearly anywhere in between. The only thing I am even fairly confident of saying is that it will not have no effect whatsoever.
But to look at a situation like this one, and not see any single way it could turn out to the GOP’s advantage — especially after the way the electorate voted in 2010? Take off the blinkers, man.
September 29, 2011, 1:34 pmMikalye says:
Or follow the 4th District and punt this on jurisdictional grounds until 2015. I agree that sending it to the court is politically the best play for Obama, as he gains almost regardless what is done in the court. But where a decision of almost any stripe help Obama, a decision of almost any stripe does not necessarily help the Roberts court. I think that Roberts sees that (even if some of the other justices don’t). He was by all accounts unhappy at the way in which Citizens United has become a political football, I don’t think that he is looking for another one this term.
September 29, 2011, 5:23 pmB-Rob says:
Well of course they will blame Obama. But then what? You still have to ask the question “OK, we are pissed at Obama . . . but does Romney have a better plan?”
Someone pointed out that 2012 is looking a lot like 2004: incumbent with a shaky approval rating because of one huge issue — for Bush, Iraq, for Obama, the economy. You would think that Kerry, given his military and foreign policy background and experience, would have been the PERFECT PERSON to beat Bush, just like businessman Romney seems like the perfect person to take on Obama. But Romney cannot even beat Obama in Massachusetts or Michigan, two of his home states. So what makes you think he turns Ohio, Wisconsin, Iowa, etc.? Perry I won’t even get into, him being so horribly flawed.
September 30, 2011, 9:36 amB-Rob says:
Jacobson is one of the least impressive “thinkers” on the right, in my opinion. For example, he writes “If the Supreme Court finds the mandate to be unconstitutional, it will deflate Obama’s presidency. In one fell swoop, the entirety of Obama’s agenda will come crashing down. It will be a political and personal humiliation.”
Really? The guy who got Osama and al Alauki, the guy who exited Iraq and scaled back in Afghanistan, the guy who got a stimulus bill through, an auto industry bailout through . . . this loss in the Supreme Court will make his entire presidency meaningless? Uh, no.
The mandate can be excised from the rest of the statute; I see no reason why the Supreme Court would not do just that. So we could have a statute that prohibits pre-existing condition restrictions, sets up health insurance exchanges, closes the donut hole, provides a subsidy for poor people to buy coverage, sends money to states to set up exchanges, permits young people to remain on their parents’ health insurance policies, etc. It just would not have a mandate. Not much of a “humiliation” for Obama if you ask me.
Jacobson also wrote: “If the Supreme Court upholds the mandate, Obama will be able to crow a little, but such a decision will leave the majority of people who hate the law with but one alternative: Throw Obama and Senate Democrats out in November 2012.”
A plurality, the last time I checked, did oppose the law, but that gap was closing. More important, though, some of the people who “hate” the law hate it from the LEFT. Jacobson does not seem to understand that those voters will NOT be voting for the GOPer candidate, who will, assuredly, want to repeal the whole statute and go back to the “good old days.”
Likewise, as with Obama showing his birth certificate, a Supreme Court decision blessing Obamacare would take the wind out of the sails of many opponents from the right. It would be resignation to a bad thing for some, but for others a respect for the system where a Congress passes a law, a president signs it, and the court system deems it constitutional. And others, who opposed it because they thought it was unconstitutional, may be convinced that they were wrong.
He Jacobson writes “A pro-Obamacare ruling prior to the election will motivate the Republican base like nothing else, and will bring the independents along. If you thought the summer of 2009 was hot, just wait until the summer of 2012 if the only way for the nation to get out from under Obamacare is at the ballot box in November.”
This assumes quite a few things about both GOPer and independent opponents of the bill. For one, it presumes that in June 2012 when a decision would supposedly issue, the health care issue will be important. I recall that in June 2008, everyone thought that foreign affairs and war would be the key issues in November 2008, but, of course, they proved to be afterthoughts when the votes were cast. We simply have no way of knowing how such an issue would play out.
Second, if independents trust Obama more on the deficit than they trust the GOPers, as the latest polls indicate, the question then would be, for independents, whether the GOPer approach to health care trumps their weakness on the deficit. Again, this even assumes that the independents who dislike Obamacare dislike it for the same reasons as the GOPers dislike it such that upholding Obamacare actually upsets them.
Third, all of this presumes that the GOPers actually have a better plan than Obamacare. The GOPers have had close to a year and a half to deal with the issues addressed by Obamcare, and have not produced a proposal. So the real battle in 2012 will be between Obamacare and whatever proposal the GOPers come up with. Jacobson seems to think the GOPers can go successfully forward on a nihilistic policy of no; but I am suspecting that an Obama message of “Compare my approach to these issues to their approach, then you decide” would resonate with independents, get them to look at the GOPer proposal, and find it lacking in specificity, or effectiveness, or both. THIS, of course, combined with the GOPers perceived weakness on budget issues, could be the one-two punch that makes a GOPer candidate unable to beat Obama.
As I said, I stand by my 60/40 odds. Because on the big issues of the day, I just don’t see the GOP having better solutions to the problems at hand.
September 30, 2011, 10:49 amB-Rob says:
I don’t see the GOP gaining an advantage because, at the end of the day, they have to offer some way to deal with the problems Obamacare addresses . . . such as the uncompensated care problems that hospitals and insurance companies face. What is the GOP answer to that problem, Demos? Or the donut hole in Medicare D?
You cannot answer my questions because the GOPers have not proposed any answers.
I am not the one with blinkers on, Demos. In fact, I not sure why GOPers and conservatives think that the problems Obamacare deals with will just disappear if Obamacare is gone. And I won’t even get into the opposition that insurance company and hospital lobbyist, the AARP, would have to Obamacare disappearing.
No, when you think of the question not as “Is Obamacare a winner for the GOP or Obama?”, but as “Which approach solves the problem, the GOP’s non-existent proposals, or Obamacare?”, I don’t see how the GOP ultimately “wins” this battle that is being fought on Dem friendly ground.
September 30, 2011, 10:59 amB-Rob says:
Question, Demos: are you saying that the Ryan budget proposal was their “replace” for Obamacare? Because, it’s funny, I have not heard any GOPer say that. Indeed, seeing how people ran away from the Ryan budget (like Bachmann and Gingrich, for example), I think you need to stop smoking what you are smoking.
Oh, look what I found from Tuesday’s Politico. The key quote in this article, I think is
And
Got that? As of Tuesday, Ryan was laying out plans to EVENTUALLY put together a GOP response to Obamacare. So even though you might think Ryan’s voucher plan for Medicare and block granting Medicaid was the GOP “replace” plan, the guy who wrote it DISAGREES WITH YOU!
September 30, 2011, 11:10 amDemosthenes says:
Oh, gosh, well. If it’s your opinion, it must be true. And even if true, by the way, attacking the speaker rather than the speech?
Except for the killing of bin Laden, not all the things you list are inarguable net positives. How much of his political capital did Obama eventually expend to pass PPACA? A lot, wasn’t it? I’d say Jacobson is closer to the mark than you would like to admit. As for your contention that “[t]he mandate can be excised from the rest of the statute,” based on what? There’s no severability clause in the law, and one of the administration’s own arguments for the mandate is that they believe it to be a financial necessity to carry through the rest of the bill. How can you be so sure that if the mandate is found unconstitutional, the rest of the law will nevertheless be allowed to stand? The simple answer is that you can’t.
Yes, because they’re totally the same thing. Come on! MOST Republicans were in opposition to the ridiculous birthers. And there are far more people who oppose PPACA than there ever were birthers. I suppose there’s no possible way you can see a declaration by the Supreme Court that PPACA is constitutional might be just as likely to fire up the Republicans as to discourage them? No? Blinkered, then.
As for your contention that “we simply have no way of knowing how such an issue would play out”…fair enough, and absolutely true. Do you not see this is as much an argument against YOUR seeming certainty as it is Jacobson’s? I mean, you are also out here telling us what IS going to happen. And the timespan during which things could happen rendering YOUR predictions meaningless is a lot longer than the one from June 2012 to November 2012.
I mean, seriously…
September 30, 2011, 7:01 pmDemosthenes says:
I’m sorry. Who’s said this? How on earth do you support this? This statement is a total straw man, and you have absolutely no way of backing it up.
Second, in what way does PPACA “deal with” these problems? Oh, right. By “fixing” them with the assistance of an unconstitutional mandate, in such a way that the budget will still be busted. Yes, you’re right. That’s totally workable.
September 30, 2011, 7:10 pmDemosthenes says:
Fair enough. I over-reached. I should have said Ryan “was drafting” a full response. But the elements of what will eventually be the plan are mostly already on the table — it’s not as though Republicans haven’t been discussing a variety of ideas. And I remain confident that Ryan’s the guy to put it together. The toxicity of his budget proposals, by the way, has reduced substantially. Discussing how much the GOP wanted to take away Medicare from seniors may have worked to steal a seat in NY-26, but it didn’t save NY-9 for you guys…
I see no contradiction between what you say above and something else I initially said, which was “talking up a modified version.” If you think most of the things that Ryan proposed in his budget won’t eventually make it into the final GOP proposal (which, may I point out, still has well over a year before it needs to be completely finalized) — well, you haven’t made such a claim. But if you did, I’d be greatly skeptical of it.
The problem with your forecasts is that they are based on the GOP not having a fully workable piece of legislation ready to go RIGHT NOW. “What’s the GOP’s solution to these problems?” you ask. “No solution can’t possibly be better than the bad solution we now have in place!” (Okay, you didn’t say that last part.) They only have to have something ready to go for a GOP-controlled Congress in January 2013, and probably sooner for the debates. As you pointed about about Jacobson but failed to note about yourself, a year is a long time in which many criticisms can be made moot.
And by the way, many people are not prepared to say that no solution wouldn’t be better. If my window is broken and my power knocked out during a huge storm, not taking concrete steps to do something about the problem is not ideal. But covering the open window with flammable material and then leaving several lit candles next to it? I would rather do nothing at all than do something like that.
You first. :)
September 30, 2011, 7:32 pmB-Rob says:
I point out the same thing again: the complete absence of ANY GOPer proposals to deal with any of the problems Obamacare addresses, including the two I highlighted, uncompensated care and pre-existing conditions. I would have to think that if there was a non-Obamacare approach to addressing those issues, the GOP would have offered one. But at Ryan stated on Tuesday, the point will come where the GOPers will have to put up or shut up. To date, their silence in addressing the problem either portends what I questioned, i.e., an assumption that the problems will magically disappear, or laziness in failing to address them.
You declare the mandate unconstitutional; your opinion. But the fact that you do not like the Obamacare approach does not mean that (a) the problems solved by Obamacare will not be an issue in 2012, or (b) that the GOP can get by doing nothing.
October 1, 2011, 3:44 pmB-Rob says:
Let’s get real. The problems Obamacare addresses (such as the Medicare Part D donut hole; subsidizing insurance for people who cannot afford it; reducing uncompensated care by mandating coverage; pre-existing conditions; and lifetime coverage caps) have been around for years. The GOP never proposed any solutions to these problems and but for Obamacare, probably would not in the future. This failure to offer an alternative may be because they saw no problem at all (which would explain failing in a year and a half to come up with an alternative to Obamacare), or, once Obama co-opted their better ideas (like the mandate, the interstate exchanges, the voucher-like insurance subsidy, etc.) they had no ideas left in the cupboard.
Indeed, that is the funniest thing about Obamacare — the most unpopular part of the law, the mandate, is a GOPer con idea (lifted part and parcel from Romneycare), while the other aspects of the law can only be opposed on normative grounds, i.e., the feds “should not” be involved in health insurance issues. Obama has forced the GOP to offer SOMETHING on health care. Whether the mandate survives or not, the GOP not be able to sit still and act as if the health care system is A-OK, if not for Obamacare.
Finally, you asked why I assume the mandate will be severed even though the administration said it was no severable. Well, for one thing, the 11th Circuit found it severable, based on Supreme Court precedents, even though there was no severance clause. Second, whether the administration argued in the past that it is not severable, tha does not mean they won’t accept the 11th Circuit’s finding that it was severable. Indeed, they did not appeal that aspect of the 11th Circuit’s decision. Third, the mandate is a specific clause of the statute that stands alone; it is not imbued throughout all aspects of the statutes, so the order could issue to simply strike that section, leaving the remainder of the statute intact. In fact, other than the mandate, I have yet to hear ANYONG offer a constitutionality critique of any other part of the statute. Instead, the assumption is that, because the mandate should fail, so should the rest of the statute. Only a hyper-activist court would rule that way. But maybe that is what conservative judicial activists want.
October 1, 2011, 4:07 pmDemosthenes says:
What you said was:
“I not sure why GOPers and conservatives think that the problems Obamacare deals with will just disappear if Obamacare is gone.”
Do you not understand how these two things are not equivalent? I mean, when you called me out on being wrong, I at least had the decency to man up and admit I was. Go and do thou likewise.
Number one, my opinion has nothing to do with the mandate’s constitutionality. I may be right (and believe I am). I may be wrong. But the mandate’s constitutional status is what it is regardless of what I, or anyone else (including the members of the Supreme Court) believes about the issue.
Number two, again, how has PPACA “solved” anything? I would say it’s going to break the national budget, except that’s already broken; suffice it to say, it’ll stomp on the pieces. Do you not understand how this doesn’t solve anything?
Let’s “get real,” as you say. (By “con,” I assume you mean conservative.) The mandate is not “conservative.” And just because a member of the Republican Party advanced it as governor of a radical-left state doesn’t make it a GOP idea. Unless you’d like to claim things like Jim Crow laws as “Democratic ideas”?
And what the Constitution authorizes, or does not authorize, is not a “normative” objection. That is the fundamental objection here, after all…not simply that PPACA should not have been passed, but that it is not constitutional. That you misunderstand this makes me despair of this conversation.
Oh, now, this is just sad. Your first two reasons are certainly disputable in their connection to your assertion, but well-argued in that they posit why a connection might be possible, which was all I asked you to prove. So I’ll let them alone.
The third, though, is ridiculous. The Obama administration has been quite clear in the past that the mandate is critical to the success of their regulatory scheme. Strike the mandate, but leave the rest of the law intact, and all of the bogus “solutions” you seem to value so much are now that much less equipped to actually solve the problem. The Supreme Court itself has said that a provision of a law may be nonseverable from the rest of the law if the Court has reason to believe that Congress would not have enacted the remainder of the law without the provision.
So, no. Given the lack of a severability clause, it would not take your posited “hyper-activist court” to rule that way. It would simply take a Court which believed that the answer to the following question was “no”:
“Would Congress have passed the rest of PPACA without the individual mandate?”
And the answer, for large swaths of the law at least, is clearly “no.” Unless you actually believe that Obama and Congress would have dared to suggest all these sweeping insurance reforms without at least an attempt at paying for them. Which you might, given that disagreeing with you on this issue apparently marks one as a “conservative judicial activist.”
October 1, 2011, 9:34 pm