UPDATE: DOJ Asks for Expedited Review of Obamacare Loss

Todd Gaziano /

After weeks of delay, the Obama Administration finally went ahead and did it.

Early last night, the Department of Justice (DOJ) filed a notice of appeal in Florida v. HHS, the multi-state lawsuit that has the best chance of striking down Obamacare. And this morning, DOJ filed a motion in the U.S. Eleventh Circuit Court of Appeals for expedited review  of the case, which was a condition the district judge imposed on the DOJ to grant its request for a stay of the judgment pending appeal. This is a significant strategic victory for the states and the National Federation of Independent Business on the eventual march to the Supreme Court.

For those who have been following the case closely, the government’s motion for expedited review is a conspicuous change of pace for the Obama Administration, which has attempted to delay this litigation at every turn and with highly questionable legal tactics. The Administration’s goal was (and probably still is) to buy time to build up the edifice of Obamacare so that, even if the courts do strike down the individual mandate, the Supremes will allow the rest to stand. That strategy is now unraveling.

The Administration’s most notable effort to drag out the litigation came earlier this month in a bogus “motion to clarify” Judge Roger Vinson’s decision, which held that the individual mandate is unconstitutional and struck down the whole law. As Hans von Spakovsky and I explained last Thursday, that strategy backfired spectacularly with a stunning and deserved rebuke from the district court. As Judge Vinson explained in his order last week, the court expected that DOJ would rush to stay the court’s order and then file an immediate appeal. But, the judge wrote, “It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to ‘clarify.'” The Administration, he concluded, was just playing games.

To get things moving, Judge Vinson gave the government an ultimatum: appeal within a week and seek expedited briefing in the appellate courts (either the Eleventh Circuit or the Supreme Court), or the implementation of Obamacare will come to an immediate halt. Wisely, DOJ took the judge at his word—this time—and filed its notice of appeal and motion for expedited briefing at least one day earlier than the deadline.

Until last night, it seemed like the government would wait out every deadline to the last possible moment. Now, however, DOJ may have come to the realization that the courts have seen through its strategy, and further delay will prejudice the next level of judges further.

That said, the Administration’s motion to expedite the appellate briefing requests a timeline that is still too slow and attempts to reserve one exception: if the states file a cross-appeal on the Medicaid funding-coercion argument they lost on. This asking-for-expedition-but-then-trying-to-drag-its-heels approach probably won’t work. The plaintiffs will likely seek a more expeditious briefing schedule without any exceptions. With both parties seeking expedited briefing, it is likely the Eleventh Circuit itself will set a reasonably prompt schedule when it rules on the two motions.

The bottom line for those of us who can calculate the appellate timetables is that it is likely that a decision will be reached in the court of appeals by this fall, if not earlier, and the Supreme Court can consider and hear the case next winter for a likely decision in June 2012 or earlier.

Finally, we can thank Judge Vinson again for putting the appeals court on notice so that it won’t put up with any attempt to do an end-run around the judicial process and, ultimately, the Constitution.