Why the DOJ Gave Up Its Delaying Tactics in the Obamacare Litigation

Todd Gaziano / September 27, 2011

Many predicted the Obama Administration would not stop its delaying tactics in the ObamaCare litigation, which most commentators thought were an attempt to prevent the Supreme Court from deciding the case before the 2012 elections.  The Administration received the equivalent of two judicial reprimands in the case brought by 25 states and NFIB that it ultimately lost in the U.S. Court of Appeals for the Eleventh Circuit.  It was that very case in which the Administration could have tried one more delaying maneuver, by asking the full court (en banc) to rehear the case.  Its decision late yesterday not to drag that case out further and allow a clear path to Supreme Court review is worthy of praise, regardless of the reasons.

It’s certainly possible that the Administration really believes its troubling legal theory that Congress can regulate practically anything, as long as some chaos-theory connection can be found between the desired government regulation and something in commerce—which means everything.  But there are several other factors that made further government delay untenable:

• In an unusual, but inspired legal move, the 25 states and NFIB had asked the full Eleventh Circuit Court to hear the case in the first instance (last spring), and the Obama Administration opposed that motion.  The Administration could have argued that that was before it lost the case, and now the full court should give it another bite at the apple, but that would be have been a more difficult argument to craft than in the regular order.
• There are at least three reasons to believe the Eleventh Circuit would have denied the request for en banc review, including that it voted against hearing it en banc already, the equitable arguments for expedition advanced by NFIB and the states last spring are even more powerfully in their favor now, and the composition of the judges on the full court.
• A failed effort at en banc review probably would not have been enough to stop the Supreme Court from hearing the case in its new term anyway, but might have further embarrassed the government.
• The government’s abandonment of delay in the Eleventh Circuit might give it slightly more maneuvering room (and credibility) to make an argument to the High Court about which case or cases to hear, and to ask a predictably unsympathetic panel in the DC Circuit that just heard another ObamaCare challenge to stay its ruling pending Supreme Court resolution.
• And finally this thought:  If the government did prevent the High Court from ruling on the case before the 2012 election, and Obama was not re-elected, the new President might take a page from the DOMA non-defense and decide not to defend ObamaCare, confessing error, and leaving it to someone else appointed by the Court to argue the case.

In short, the Administration did not have a lot of good options.  I’m still willing to pat the litigators on the back for doing the right thing, but I am also savvy enough to suspect that they would have sought a further delay if they thought the government would prevail in preventing the Court from hearing the case at all during an election year.