States challenging Obamacare file before the Supreme Court UPDATE

Today, 26 states and the National Federation of Independent Business filed a Petition for Writ of Certiorari before the United States Supreme Court.  A “petition for writ of cert” is simply a request by the parties that the Supreme Court hear the case.  This is an appeal from the 11th Circuit Court of Appeals opinion, filed August 12, holding that Obamacare’s individual mandate is unconstitutional.

If you recall, Judge Vinson of the Federal District Court for the Northern District of Florida declared the entire law to be unconstitutional.  On appeal to the 11th Circuit, that court upheld all parts of the law except the individual mandate.  Consequently, the states are appealing to the Supreme Court and requesting that Judge Vinson’s decision be reinstated.

What is interesting here is that the states “beat the administration to the punch”.  The administration had until November 12 to file its petition for writ of cert, and most expected it to consume every second of that in the hopes of delaying any consideration, and ruling into 2013.  After all, the more of Obamacare that gets implemented, the harder it is to unwind it should the law be found to be unconstitutional.

The other point of interest is that many, if not most lawyers believe it is far better to be the one presenting the claim (the appellant) than the one defending against the claim (the appellee).  If you are presenting the claim, you file your initial appellant’s brief, you opponent files the appellee’s brief, and then the appellant may file a reply brief contesting points made by the appellee.  This is somewhat akin to two bites at the apple.

The government could have been in this position, but, delay apparently was far more important.

I wonder if they realized that the states had appealable issues as well?

Finally, it should be noted that the Supreme Court does not have to accept the case, and can do so by simply denying the petition for writ of cert. 

 Update:

Yesterday afternoon, the administration filed a Petition for Writ of Certiorari before the United States Supreme Court seeking review of that portion of the 11th Circuit opinion finding Obamacare unconstitutional.  Given this, it is highly unlikely that the Supreme Court would refuse to hear the case.

 

Posted in , ,

SoundOffSister

The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.

4 Comments

  1. Anybody but Obama on September 28, 2011 at 6:39 pm

    I think Holder was in a box. If he filed right away then the case comes during the election so he waits and hopes the states are asleep at the wheel.?



    • Dimsdale on September 28, 2011 at 7:29 pm

      I would think he would be better suited to occupying a cell rather than a box!



  2. JBS on September 30, 2011 at 10:05 am

    What I hear is that there is hope for change (all pun intended). I wonder if it helps that there are 26 states and other appellants filing for a SCOTUS decision??
    Lord, help save and defend us against The One, the frightful BO and his minions.
    Holder? Tried for murder charges (Fast and Furious) and then sentenced to life in a cell. Or, how’s this for irony? He is executed by the next administration’s DOJ!? Poetic. Tidy.



frontpg-supreme-court

The website's content and articles were migrated to a new framework in October 2023. You may see [shortcodes in brackets] that do not make any sense. Please ignore that stuff. We may fix it at some point, but we do not have the time now.

You'll also note comments migrated over may have misplaced question marks and missing spaces. All comments were migrated, but trackbacks may not show.

The site is not broken.