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.

DOJ: DOMA is Unconstitutional

In Golinski v. Office of Personnel Management, federal employee Karen Golinski is suing the federal government's Office of Personnel Management. She demands that they extend the same health insurance coverage to her partner that would be afforded to a heterosexual marriage. Golinski and her partner are married under California law, but § 3 of the Defense of Marriage Act prohibits the federal government from recognizing same-sex marriages, including in the provision of employee benefits.

The Department of Justice announced last month that it would no longer defend the constitutionality of the Defense of Marriage Act, prompting Congressional Republicans to hire their own counsel to defend the indefensible. The Republicans' lawyer, Mr. Clement filed the first brief in which he has attempted to defend the constitutionality of DOMA on the merits in a motion to dismiss Golinski's suit. Yesterday, the DOJ filed a full rebuttal in an expansive 31 page brief that argues that the law is unconstitutional. This is the first time that the Department of Justice has expanded upon the letter that Attorney General Holder sent to House Speaker Boehner explaining that the law would not be defended in court.

The brief argues that that classifications based on sexual orientation must meet a middle standard. Classes o The 'heightened scrutiny' that DOJ argues for would put sexual orientation on the same level as gender under the regime of rights-protections in the courts. Laws can discriminate between genders, but only if the objective of the law is to fulfill an important government imperative and the means through which the law meets that objective is 'substantially related' to the goal. This is a much more stringent standard than the one that Congressional Republicans are arguing that the court should use in analysis. The lowest standard of review, the rational basis test, requires only that a law be a reasonable object of government attention and that the means employed could be rationally construed at achieving those means. The actual standard of review may not matter in some cases; the Prop 8 debacle demonstrates that discrimination in marriage law against same-sex couples also fails a rational basis test.


That the DOJ is asking for a higher standard of review for laws that use a sexual orientation classification in general is the bigger news of the day. Using a heightened standard of review would certainly have made Don't Ask Don't Tell impossible as an administrative policy in the army. The army currently can discriminate against women--keeping them out of combat roles--but certainly cannot prohibit service outright based on gender. If heightened scrutiny is used as the standard for sexual orientation, sexual minorities will receie the same general process protections as women.

The courts can reject this standard or they can use it; the likelihood of appeal to the 9th circuit regardless of outcome in the district court is high. If the circuit adopts the heightened scrutiny standard, a lot of state law will have to meet a humane and reasonable standard. I think the likelihood of adopting that standard in the 9th circuit is fairly good. If someone wants to discriminate against gay and lesbian Americans in the Western United States, they'll have to seek some carefully tailored means and be in pursuit of some important goals.