Obamacare Litigation Update: All the Briefs the Supreme Court Needs to Take the Case Are In

In the last week, we’ve seen another slew of Supreme Court filings regarding the various Obamacare lawsuits. Most notably, the private plaintiffs in the Florida/​Eleventh Circuit case (the NFIB and two individuals)—represented by Mike Carvin and Randy Barnett, among others—filed their response to the government’s cert petition last Friday, two weeks before it was due! 


So, as with the cert petitions themselves at the end of September, the private plaintiffs initiated a “filing cascade” (my phrase, not a legal term of art) and forced the government’s hand. The government then filed its consolidated response (to both the private and state plaintiff petitions) on Wednesday, and the (26) state plaintiffs—represented by former solicitor general Paul Clement—also filed their response to the government’s petition.


Got all that? It basically means that all the necessary filings are in and the case is “ready for distribution” to the justices’ chambers for consideration of the cert petitions, which could happen as early as the Court’s November 10 conference. That means we could see an order about which case(s)/issue(s) the Court is taking as early as November 14.


So that’s the timing. A brief note on substance: As you may recall, the Eleventh Circuit plaintiffs want the Court to review the following issues: whether the individual mandate exceeds federal power, the new Medicaid regulations/​expansion as coercing the states, the mandate that states provide health insurance in their roles as employers, and severability. The government, for its part, wants the Court to review the individual mandate, whether the Anti‐​Injunction Act makes the suits unripe (it argues that the AIA doesn’t apply but still, oddly, wants the Court to weigh in), and severability. On this last point, the government has reiterated its position that if the individual mandate falls, the guaranteed‐​issue and community‐​rating provisions must fall with it—a position that garnered some media attention but is both consistent with its previous arguments and honest lawyering. (It’s disingenuous as a matter of basic economics to argue that the overall reform can survive without the individual mandate, even if that’s the incongruous position that the Eleventh Circuit took rejecting the government’s “concession” on severability.) Of course, the government is also hoping that the idea that striking the individual mandate also means striking the provision requiring coverage of pre‐​existing conditions will make the Court hesitant to do so.


Note that the government also filed its response to the Liberty University petition and still has time to file a response to Virginia’s cert petition (on the state standing issue), both out of the Fourth Circuit. It argues, as do the Eleventh Circuit plaintiffs, that the Court should hold these petitions (as well as the Thomas More Legal Center’s out of the Sixth Circuit) pending resolution of the Eleventh Circuit case. Finally, the D.C. Circuit has yet to issue its opinion in the Obamacare case argued there a month ago.


For more on both the timing and which issues the Court is likely to take, see Lyle Denniston’s excellent analysis at SCOTUSblog.