The National Federation of Independent Business (NFIB) stole a march on the Obama Administration this morning by filing a petition with the U.S. Supreme Court appealing the 11th Circuit’s Obamacare decision.
The Department of Justice (DOJ) had announced on Monday that it was not going to ask all 11 judges of the 11th Circuit Court of Appeals to review en banc the August 12 decision of a three-judge panel of the 11th Circuit that found the individual mandate unconstitutional. This opened up a path to an appeal by DOJ to the Supremes.
However, with this petition, the NFIB jumped ahead of Eric Holder’s slow-moving DOJ (which until Monday had done everything it could to slow-walk this case filed by 26 states and the NFIB). The NFIB is obviously not appealing the three-judge panel’s opinion about the unconstitutionality of the individual mandate. But the NFIB is appealing the portion of the panel’s decision that held that the unconstitutional individual mandate could be severed from the Obamacare legislation.
The NFIB is asking the Court to overrule this holding, since “Congress itself deemed [the mandate] ‘essential’ to the Act’s new insurance regulations.” Given that the 11th and 6th Circuits have issued “directly conflicting final judgments about the facial constitutionality of [Obamacare’s] mandate,” the case is one that the Court should obviously take up given its interest in eliminating conflicting opinions in the courts of appeal.
What also differentiates this particular case from the many other lawsuits that have been filed against Obamacare is the “all star” lineup of Supreme Court litigators that the NFIB and the 26 states have lined up to argue their case before the Supreme Court. It includes Michael Carvin, a former DOJ official who has argued (and won) numerous cases before the Court; Gregory Katsas, a former DOJ official who was a clerk to Justice Clarence Thomas; Kevin Marshal, another former DOJ official and Thomas clerk; Hashim Mooppan, a former Justice Antonin Scalia clerk; and Randy Barnett, a nationally recognized constitutional scholar and professor at Georgetown.
The lawyers for the states include Paul Clement, former Bush Administration Solicitor General; Lee Casey, another former DOJ official who clerked for Alex Kozinski, who is now the Chief Judge of the Ninth Circuit; and David Rivkin, another Supreme Court litigator with wide experience in the government, including in the White House and the DOJ.
The government lawyers in the DOJ’s Office of the Solicitor General who will be arguing the constitutionality of Obamacare will have their work cut out for them.
UPDATE: Following the track of the NFIB, the states have also just filed a petition for certiorari with the U.S. Supreme Court in the 11th Circuit case. In addition to appealing the severability issue, the states are raising two other issues: (1) whether Congress exceeded its enumerated powers and violated basic federalism principles by coercing the states into accepting Obamacare requirements by threatening to withhold all federal funding under Medicaid, which is the largest single federal grant program to the states; and (2) whether Congress can treat sovereign state governments differently from any other private employer when imposing invasive mandates on how the states provide state employees with insurance coverage.
SECOND UPDATE: The Obama DOJ just filed a petition seeking certiorari by the Supreme Court in the 11th Circuit Obamacare litigation, following on the heels of the NFIB and the states. DOJ is appealing the lower court finding that the individual mandate is unconstitutional. DOJ also claims that the challenge to Obamacare is barred by the Anti-Injunction Act, a federal law that prohibits lawsuits trying to stop the assessment or collection of a tax. This despite the fact that Congress and the Administration said on repeated occasions that the penalty imposed by Obamacare for not purchasing insurance was a penalty and not a tax (and nine different courts have found it to be a penalty, not a tax).
The Spanish version of this article can be found at Libertad.org.