Thursday, September 22, 2011

11th Circuit En Banc

The 'Will they or won't they' question for Affordable Care Act court action this week is whether the government will appeal the 11th circuit's ruling to the Supreme Court or to the full 11th circuit. The government's appeal is due on Monday.

First, let's review the basic history. The appellees are 26 states, headed by the Attorney General of Florida, who lost at the district court level. A 3 judge panel on the 11th circuit court reversed that decision, declaring that individual mandate is not supported by the commerce clause or the federal government's taxation power, but ruling that the rest of the law could stand without the mandate, possibly inviting Congress to use a different enforcement regime in the market to ensure universally affordable coverage without compulsion (e.g. a public option). The decision is here (pdf).

The first question that the government will answer in the question of where to turn for the appeal is 'who is the 11th circuit?' On the most basic level, the 11th circuit consists of Alabama, Georgia, and Florida. It's a fairly conservative region, but not quite as conservative as the 4th circuit traditionally. Of the active judges on the 11th circuit, one was appointed by Gerald Ford, one was appointed by Ronald Reagan, three were appointed by George Herbert Walker Bush, four were appointed by Bill Clinton, one was appointed by George Walker Bush, and 1 was appointed by President Obama. The decisions on the constitutionality of the Affordable Care Act have proceeded upon startlingly partisan lines, so the 6-5 Republican to Democrat split in a potential en banc hearing doesn't augur particularly well for the government.

A couple caveats apply. Judges appointed by Ford or the first President Bush may be more ideologically diverse than ones appointed by the second President Bush or Ronald Regan. cf: Souter versus Alito and Roberts. More traditional conservative values in judging philosophy, such as respect for precedent, might tend to be more present in older judges. Those factors may tilt more towards the government than the partisan split suggests.

On the other hand, they are completely outweighed by the particular history with this case: Judge Hull, a Clinton appointee, voted against the constitutionality of the individual mandate. The numbers don't look good for the government's legal team to turn to the 11th circuit.

If the government's goal in the litigation is to maximize the number of provisions which are left standing, letting the 11th circuit en banc weigh in could do more harm than good. It would be seriously surprising if the Supreme Court eventually refused to grant certiorari to this case. It is the most watched question before the federal courts at the moment. Even if the 11th circuit en banc reverse the 3 judge's panel ruling, the Supreme Court's inevitable say-so would moot the early reversal. Recent court watchers also have little belief that the conservative wing of the court would actually follow any of the doctrines that 'judicial deference' entail. If the Supreme Court conservatives prove to be partisan hacks as well, there is no reason to believe they will stick to the live issue before them. Even if all the circuit decisions pointed in the direction of "the Affordable Care Act's individual mandate is well within established commerce clause powers to regulate national affairs that the states separately are incompetent to confront," the Supreme Court's arrogant say-so could not be prevented.

However, allowing the current 11th circuit court ruling to stand does have on positive that a referral to the en banc court may wipe out. Liberals (or judicial restraint practitioners) on the Supreme Court may be able to extract a concession from Justice Kennedy, who could vote with the conservative majority invalidating the individual mandate, but could still exercise some restraint by forging a majority of judges who find that the individual mandate is severable from the broader Affordable Care Act. 5 judges can strike down the individual mandate, and another 5 can preserve the existing segments of the Affordable Care Act. If the en banc 11th circuit overturns the severability side of the panel's opinion and strikes down the entire law, there would be less pressure on Kennedy to maintain some restraint.

This is a highly superficial analysis- I'm sure the Department of Justice has looked in depth at each judge's voting history on the 11th circuit. The goal is to come out from the circuits either with opinions from the circuit level that agree with the government and are persuasive to a majority of the Supreme Court or opinons from the circuit level that find for the states but are utterly repugnant to the court. And then, of course, you have to hope that the Supreme Court actually cares about the constitution more than they do a partisan or narrow view of America.

On the bright side: there's been some personnel turnover since Bush v. Gore.

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