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On skipping the en banc Eleventh Circuit

There is a lot of speculation (for example, see here and here and here) surrounding the Obama Administration’s decision not to seek en banc review of the Eleventh Circuit’s panel ruling invalidating the individual mandate of the Affordable Care Act.  Most of it suggests that the government thought it might well lose before that court, wanted to control the vehicle that made its way to the Supreme Court, and thought that the timing made for better politics.

Different factors almost certainly had different weight for the various government lawyers involved.  But I think there is a simpler and more straightforward answer.  In situations like these, politics is never completely absent.  But the government tends to act in its institutional interests first, and the interest of a particular Presidential Administration second.

The ACA is a huge, complicated statute.  It is hard to implement, a process that will take a lot of time.  As a result, the government genuinely needs to know as soon as practicable whether the law in fact is constitutional in whole or in part.  At least, that is very likely the strong view of the agencies that are effectively the clients of the Office of Solicitor General in this litigation.Â

Seeking en banc review in the Eleventh Circuit would have made sense only if the government was going to press the Supreme Court to defer reviewing the constitutional question until next Term (including by denying review of the pending Sixth Circuit case).  So, the United States would have been making a choice to delay a final answer – because Supreme Court review is inevitable – for a year.  I expect that the agencies involved strongly resisted that delay, and the Solicitor General decided that the upside of potentially getting the panel opinion reversed was not actually that great, because any victory could itself be temporary.

Hence, it made sense to go straight to the Supreme Court.

Disclosure: our firm will represent the AARP before the Court on the merits of the constitutional question, which as a consequence I’m going to try and avoid discussing on the blog.

Recommended Citation: Tom Goldstein, On skipping the en banc Eleventh Circuit, SCOTUSblog (Sep. 27, 2011, 12:05 PM),