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Health Care Reform Law of 2010

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message 1: by Douglas, Group Moderator (last edited Sep 16, 2010 10:28PM) (new)

Douglas (dougkotti) | 193 comments Mod
Twenty states, along with some individuals and the National Federation of Independent Business, sued the federal government in United States District Court presiding in Pensacola, Florida, to halt effectuation of the “Patient Protection and Affordable Care Act,” P.L. 111-148, as amended by the “Health Care and Education Reconciliation Act of 2010,” P.L. 111-152. The lawsuit was filed on March 23 of this year, immediately after President Obama signed the health care reform bill into law the same day.

The federal government responded with a motion to dismiss.

One can read the pleadings filed by the plaintiffs and by the federal government online at: http://www.healthcarelawsuit.us/.

[DISCLAIMER: The website http://www.healthcarelawsuit.us/ is clearly maintained by those who oppose the federal health care reform law, and who support the lawsuit. As Group Moderator, I take no public position on the federal law at issue in the case. Instead, my functions here are only to generate a discussion among Group Members and to provide some insight into the law surrounding this significant Constitutional dispute.]


message 2: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
As we did with the Arizona immigration lawsuit and other topics within our Constitution Group, we'll explore the issues raised by the parties in this case, examine the efficacy of each side's legal position, and discuss constitutional law invoked by the parties and bearing on the dispute. Clearly, this case is destined for the United States Supreme Court.


message 3: by John (last edited Sep 21, 2010 10:06AM) (new)

John Karr (karr) | 15 comments Douglas wrote: "Clearly, this case is destined for the United States Supreme Court.

The sooner the better, imo.


message 4: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
John wrote: "Douglas wrote: "Clearly, this case is destined for the United States Supreme Court.

The sooner the better, imo."


John, from the way that case is gaining some speed and momentum, I believe you'll get your wish.

Douglas in the Palmetto State


message 5: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
Today, November 14, 2011, the United States Supreme Court granted certiorari in the three cases challenging the health care reform law, known by its shorter name as the Affordable Care Act (ACA). In other words, our nation's highest court will hear the cases and will determine the constitutionality of the ACA during its current term. The Court's term ends in June 2012, so its decision will come a few months before the Presidential election the following November. The Supreme Court's Orders granting certiorari in the three cases is available online at http://www.supremecourt.gov/orders/co....


message 6: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
We can follow progress of the appeal at the Supreme Court's web site. Here is the link online: http://www.supremecourt.gov/Search.as....

As you can see, three cases are being consolidated into one series of hearings that will span five and a half hours. The three cases, with their respective Supreme Court docket numbers, are U.S. Department of Health and Human Services v. Florida (#11-398); Florida v. Department of Health and Human Services (#11-400); and National Federation of Independent Business v. Sebelius (#11-393).


message 7: by Douglas, Group Moderator (last edited Nov 15, 2011 03:21PM) (new)

Douglas (dougkotti) | 193 comments Mod
The decision that the Supreme Court will review on appeal was issued by the federal Eleventh Circuit Court of Appeals is 305 pages in length, with the appendix. You can access the Court of Appeals' opinion online at http://aca-litigation.wikispaces.com/..., and at http://www.ca11.uscourts.gov/opinions....

The "middle layer" of Courts in the federal system, sandwiched between the district courts and the Supreme Court, is the Court of Appeals. The federal system has eleven circuits. Headquartered in Atlanta, Georgia, the Eleventh Circuit Court of Appeals has appellate jurisdiction over federal cases originating in Alabama, Florida and Georgia. The Eleventh Circuit includes nine federal district courts with each state divided into Northern, Middle and Southern Districts.

Normally, each case coming before a federal Court of Appeals is heard and decided by a panel of three judges selected from among the numerous appellate jurists working in the Circuit. However, in the ACA appeal, six judges heard the case, one of whom dissented in part from the majority's decision. Perhaps the complexity of the constitutional issues raised, as well as the historic significance of the case, convinced the Court to assign six rather than the usual panel of three judges.


message 8: by Douglas, Group Moderator (last edited Nov 14, 2011 12:46PM) (new)

Douglas (dougkotti) | 193 comments Mod
John wrote: "Douglas wrote: "Clearly, this case is destined for the United States Supreme Court.

The sooner the better, imo."


John, my friend, your wish has been granted.


message 9: by Douglas, Group Moderator (last edited Nov 15, 2011 04:33PM) (new)

Douglas (dougkotti) | 193 comments Mod
Other cases were docketed with the Supreme Court challenging the ACA. To learn more about the other cases, please go to the Supreme Court's web site where you can access the Petitions and other documents filed in all of the ACA appeals. Here is the link: http://www.supremecourt.gov/docket/PP....


message 10: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
In several recent posts about the health care law appeals accepted by the United States Supreme Court on November 14, 2011, I used the term “certiorari.” This Latin word is mysterious or arcane to many, so I submit the following to define certiorari as a legal term and to explain its place in federal appellate procedure.

The best place to start is the original meaning of the word. Translated from Latin, certiorari literally means "to be made certain." Eugene Ehrlich, a Latin language scholar and lexicographer who taught at Columbia University, defined the term for laypeople as: "A writ of certiorari ... is a legal document calling for delivery to a higher court of the record of a proceeding before a lower court. The purpose of calling for the record is to enable judicial review of the action taken by the lower court. The basis for issuing the writ is a complaint that an injustice has been done by the lower court." Amo, Amas, Amat and More: How to Use Latin to Your Own Advantage and to the Astonishment of Others, p. 79.

For an understanding of the federal appellate process, the basic structure of the federal court system is helpful. The basic trial courts are the federal district courts. Each state has at least one federal district; larger states have more than one federal district. For example, my home state of South Carolina has one federal district, while large state California has four federal districts organized geographically as the Northern, Central, Eastern and Southern California Federal Districts. The next “highest” court level in the federal system consists of the Circuit Courts. The states are grouped geographically into eleven districts in the United States. The ACA cases selected for appellate review by the U.S. Supreme Court came from the Eleventh Circuit. The U.S. Court of Appeals for the Eleventh Judicial Circuit has jurisdiction over federal cases originating from district courts in the states of Alabama, Florida and Georgia.

A litigant involved in a case decided by a federal district court may appeal as a matter of right to the U.S. Court of Appeals for the Circuit in which the federal district court is located. There is no screening process for appeals taken to the Circuit Court of Appeals. One appeals by properly and timely filing a notice of appeal in accordance with the Federal Rules of Appellate Procedure. A party dissatisfied with the decision by the Court of Appeals may next seek appeal to the United States Supreme Court. However, appeals to the U.S. Supreme Court are not a matter of right. Instead, appeals are subject to a screening process. This is where certiorari enters the appellate process.

To appeal to the nation’s highest court from the Court of Appeals, one must first petition the Supreme Court in essence asking the Justices to accept the case. The appellant files a petition for a writ of certiorari. Appellate jurisdiction has been conferred upon the Supreme Court by various statutes, under the authority given Congress by the Constitution under Article III, Section 2. The basic statutes conferring and controlling jurisdiction of the Supreme Court may be found in Title 28 of the United States Code and in other special statutes. For our purposes here, the pertinent statute is 28 U.S. Code §1254(1) which provides, “Cases in the courts of appeals may be reviewed by the Supreme Court by … (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree ….”

The Supreme Court's caseload has increased steadily over the years to a current total of more than 10,000 cases on the docket per Term, which runs from October through the following June. Plenary review (that is, review by the entire Court), with oral arguments by attorneys, is granted in merely 100 cases or so per Term. Formal written opinions are delivered in 80 to 90 cases. Approximately 50 to 60 additional cases are disposed of without granting plenary review. Written opinions, including concurring opinions, dissenting opinions, and orders, are published by the Court.

After evaluating the petition, the Supreme Court decides whether to grant or deny certiorari. Certiorari is issued, i.e., granted, when the case presents an issue that is appropriate for resolution by the court and it is in the public interest to do so. Certiorari is denied when the Supreme Court decides that the case does not present an appropriate matter for its consideration. As a practical matter, the Justices do not have the time to review some 10,000 petitions. Staff attorneys and the Justices clerks, therefore, often review and screen most of the petitions.

In the ACA appeals we are following here, the actual petitions for certiorari granted by the Supreme Court are available online. Here are the web links: http://www.supremecourt.gov/docket/PD... http://www.supremecourt.gov/docket/PD... http://www.supremecourt.gov/docket/PD....


message 11: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
"Writ" is a formal written command or order issued by a Court. The Supreme Court's statutory authority to issue writs, such as a writ of certiorari, is found at 28 U.S. Code §1651(a) which provides, “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”


message 12: by Douglas, Group Moderator (last edited Nov 15, 2011 04:29PM) (new)

Douglas (dougkotti) | 193 comments Mod
The Eleventh Circuit Court of Appeals opinion in Florida v. U.S. Dept. of Health and Human Services, to be heard on appeal by the United States Supreme Court, may be found online at http://www.ca11.uscourts.gov/opinions....

The thirteen-page appendix to the majority's opinion contains an outline of the ACA's nine titles and multitudinous provisions. This outline provides a good starting point for those who wish to learn about the substance of the ACA.


message 13: by John (new)

John Karr (karr) | 15 comments Douglas, thanks for all your work here.

Do you think Kagan ought to recuse herself from this due to her efforts on getting the bill passed to begin with? I do, but I'll admit I'm biased there.


message 14: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
Hi, John. We appreciate your interest and comments.

Your point is well taken and has merit. Justice Kagan served as Solicitor General during the Obama Administration while the Patient Protection and Affordable Care Act was being drafted, debated and passed by Congress. As we all know, President Obama nominated the Professor Kagan to the Supreme Court after the PPACA was passed and signed into law.

The position and duties of the Solicitor General are defined at the government website for that office: http://www.justice.gov/osg/about-osg..... Quoting from the website, we read that the Solicitor General's is "to supervise and conduct government litigation in the United States Supreme Court." In other words, the Solicitor General represents the United States Government in the Supreme Court. As part of that function, the SG's Office selects for appeal cases from the lower courts in which the federal government is a party.

Your point is rooted in the fact that the Solicitor General is appointed by the President. Under attorneys' and judges' rules of ethics in effect for the federal courts (and in all states as well), lawyers and judges must not engage in professional activity which constitutes a conflict of interest; and lawyers and judges must avoid "even the appearance of impropriety."

Justice Kagan would argue that she has no direct conflict of interest because she never engaged in any legal work on the PPACA, and has not been involved in any litigation or appeals concerning those laws. Yet, as you are pointing out, since she was Solicitor General during the Obama Administration when the PPACA was passed, Judge Kagan at a minimum appears to have a conflict of interest in appeals concerning the PPACA and, hence, should recuse herself from any involvement in this case at the Supreme Court.

I have other comments to offer on this issue, but our purposes in this Group would be better served by hearing from our Members. The diversity, talents, and perspectives of our Group's membership are impressive. As we say in South Carolina, "what do y'all think" about whether Justice Kagan should recuse herself from the PPACA appeals now before the Supreme Court?

Thank you again, John, for raising this issue and for participating in our discussions. We all value your perspective and opinions.


message 15: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
The United States Supreme Court's term ends this month, and so we are eagerly anticipating the Court's decision on the constitutionality of the Patient Protection and Affordable Care Act to be delivered any day now.

To review the several cases which have been bundled for the Court's consideration, please go to the Court's web page devoted to the topic: http://www.supremecourt.gov/docket/PP.... There you'll have access to the parties' briefs and lower courts' orders and opinions.

Irrespective of one's political preference or opinions on this dispute, the decision about to rendered by the United States Supreme Court is one of the most momentous developments in constitutional law of our times. This is indeed exciting for all "con law junkies" like us.

Stand by, my friends; this is going to be huge.


message 16: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
Well, the Court convened this morning, and announced decisions in four cases, but not the Patient Protection and Affordable Care Act case.

As most of you know, the Justices announce the decisions verbally to those assembled in the hearing room. Here is what happened today.

Two cases involved Native Americans. Justice Kagan announced the first opinion of the morning, in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak. By a vote of eight to one, the Court affirmed the decision of the U.S. Court of Appeals for the D.C. Circuit, holding that the federal government has waived its sovereign immunity from Patchak’s suit under the Administrative Procedure Act, in which he alleges that Section 465 of the Indian Reorganization Act did not authorize the Secretary of the Interior to acquire into trust property that the Band intended to use for “gaming purposes” because the Band was not a federally recognized tribe when the Indian Reorganization Act was enacted in 1934. Moreover, the Court held, Patchak has legal “standing” to challenge the Secretary’s acquisition of the land in question. Justice Sotomayor filed a dissenting opinion.

Justice Sotomayor announced the opinion in Salazar v. Ramah Navajo Chapter. By a vote of five to four, the Court affirmed the decision of the U.S. Court of Appeals for the Tenth Circuit, holding that the federal government must pay in full each Tribe’s contract support costs incurred by a tribal contractor under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450, even if Congress has failed to appropriate sufficient funds to cover all of the contract support costs owed to all tribal contractors collectively. The Chief Justice filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Alito joined.

Justice Alito announced the decision of the Court in Williams v. Illinois. By a vote of five to four, the Court affirmed the decision of the Supreme Court of Illinois that the admission of expert testimony about the results of DNA testing performed by non-testifying analysts did not violate the Confrontation Clause of the Sixth Amendment. Justice Alito was also the author of a plurality opinion that was joined by the Chief Justice and Justices Kennedy and Breyer. Justice Breyer filed a concurring opinion, while Justice Thomas filed an opinion in which he concurred in the judgment only. Justice Kagan filed a dissenting opinion, in which Justices Scalia, Ginsburg, and Sotomayor joined. (Justice Sotomayor is the only former prosecutor presently serving on the Supreme Court.)

Justice Alito also delivered the fourth opinion of the day, in Christopher v. SmithKline Beecham Corp. By a vote of five to four, the Court affirmed the decision of the U.S. Court of Appeals for the Ninth Circuit, holding that the petitioners (i.e., the appellants) --- pharmaceutical sales representatives whose primary duty is to obtain nonbinding commitments from physicians to prescribe their employer’s prescription drugs in appropriate cases --- qualify as outside salesmen under the most reasonable interpretation of the Department of Labor’s regulations. Justice Breyer filed a dissenting opinion in which Justices Ginsburg, Sotomayor, and Kagan joined.


message 17: by Douglas, Group Moderator (last edited Jun 18, 2012 11:18AM) (new)

Douglas (dougkotti) | 193 comments Mod
Apparently, in anticipation of the Supreme Court's ruling in the Patient Protection and Affordable Care Act cases, the Court's hearing room was packed with media this morning. The professional pundits were just as disappointed as the rest of us when no decision was rendered on the PPACA.

This past Friday, June 14, 2012, a group of media folks who are calling themselves the Reporters Committee for Freedom of the Press, sent a letter to Chief Justice Roberts asking that the Court permit "live audio and video access" of the Court's decision in the PPACA cases. You can read the letter at this weblink: http://sblog.s3.amazonaws.com/wp-cont....

As most of you know, the Court does not permit live media broadcast of its proceedings, although reporters are allowed in the gallery. The Court later posts audio recordings of its proceedings accessible by the general public at its website. You can listen to the audio broadcast of oral arguments of the PPACA case from last March at http://www.supremecourt.gov/docket/pp....

Thus far, the Chief Justice has not responded to the media group's request.

In my humble view, the Court will not make an exception to its present entrenched policy.

And so, my friends, the tension builds.


message 18: by John (new)

John Karr (karr) | 15 comments Thanks for the replies, Douglas. I was away this weekend, deliberately detached from the Internet.

You understand legalities as if you were slinging law yourself ... wait, you ARE a lawyer! ;)

I, too, am awaiting the ruling on Obamacare. It was unconstitutional at the start, and deserves to be severed at the head, and all the parts scattered to winds.

Then a real Health Care law should be devised and passed.

Just my .02


message 19: by Steven (new)

Steven Harbin (stevenharbin) | 19 comments Apparently the Supreme Court feels the Health Care Law is, in the main Constitutional. Details are coming out as I'm watching on TV. I'll be interested in hearing everyone's take on the ruling once it's available. I do admit, of course, to being one who has long maintained that the law was and is Constitutional.


message 20: by John (new)

John Karr (karr) | 15 comments Nothing like a Chief Justice taking it upon himself to legislate from the bench. Amazing. All this time the Obama administration proclaims this travesty of a law contains no Tax, yet Roberts decrees otherwise.

Can't wait for Nov. 6 and a regime change.


message 21: by Steven (new)

Steven Harbin (stevenharbin) | 19 comments I will note that most scholars felt that the law was and is certainly constitutional in most of the writings I read regarding the case right up until a few months ago, when some in the media began to wonder what the court's decision would be, based on some of the questions asked by the justices and also based on some leaks that are coming to light. My .02 is that the court decided correctly and sent the matter back to the political arena where it rightly belongs. To imply that this is somehow "legislating from the bench" is a seeming contradiction in terms to me, but that's just me. Regardless, I think parts of this law are with us for good now, regardless of the outcome of Nov. 7th's election, but that's what makes things interesting in this world.


message 22: by Douglas, Group Moderator (last edited Jul 05, 2012 12:29PM) (new)

Douglas (dougkotti) | 193 comments Mod
In posts to follow, I'll offer my legal analysis from a purely nonpolitical and constitutional law standpoint. For now, I'll submit my immediate reaction when I heard the news on June 28, 2012, over my car radio while driving to a trial here in South Carolina.

The 2011-12 term of the Supreme Court brought a torrent of 5 - 4 decisions, with the conservative justices in the slimmest of majorities. Such has been the Court's record for the past few years. Hence, I had concluded long ago that the Supreme Court consistent with this "trend" would declare at least the individual mandate portion of the PPACA unconstitutional, leading to the thorny issue of severability. However, they stunned me last week.

I dare say that Chief Justice John Roberts stunned many of us with his majority opinion that the PPACA was constitutional. He agreed with the third ground asserted by Obama Administration: the individual mandate of the PPACA, via its "penalty" clause, was within Congress's enumerated constitutional power to levy a tax. The incredulity of self-perceived Court watchers was reflected in CNN and Fox News's initial "misreports" that the Supreme Court had declared the health care law unconstitutional. (Their "analysts" should have simply turned to the last page of the opinion, which is where we lawyers look first upon receipt of a written appellate decision in our cases. Ergo, beware the media! We must read for ourselves.)

The Chief Justice is one of the most conservative members of our high court. He served in the Reagan White House as a young lawyer, and was first appointed to the federal bench by President George H.W. Bush, evidently to reward him for his service to the conservative Republican cause. His is clearly a conservative legal pedigree.

Nevertheless, during the nearly seven years he has served as Chief Justice, John Roberts has grown into an institution man, so to speak. In other words, he is concerned about the role of the Court in American government and whether its decisions cause disproportionate discord and disruption. Had the PPACA been invalidated by a single stroke of the Justices' collective pen, the outcry and protests would have been much more shrill, severe, and widespread than we have seen thus far. Arguably, such was on the Chief's mind.

Mr. Roberts with his four colleagues who voted with him, have tossed the ball back to the electorate who have a decision to make in November. Indeed, he noted on the last page of his opinion, "But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people."

So, my friends, now that the Court has spoken, the rest is up to us voters, "We the People of the United States."


message 23: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
John wrote: "Nothing like a Chief Justice taking it upon himself to legislate from the bench. Amazing. All this time the Obama administration proclaims this travesty of a law contains no Tax, yet Roberts decree..."

John, has anyone considered that the Chief Justice may have given a new mantra to the Romney campaign: "Obama wants to raise your taxes!" I admit, sheepishly, that this is grossly oversimplified, but many people may view the Supreme Court's decision in this manner.


message 24: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
John wrote: "Nothing like a Chief Justice taking it upon himself to legislate from the bench. Amazing. All this time the Obama administration proclaims this travesty of a law contains no Tax, yet Roberts decree..."

I'll make this observation.

Consistently throughout our history, the charge of judicial activism is leveled by those disaffected or outraged by the high court's decision in a particular instance, whether liberal or conservative, Democratic of Republican. We saw the charge of "legislating from the bench" hurled at the Supreme Court in the wake of Roe v. Wade (the abortion case) and the Citizens United decision (campaign financing), citing merely two examples of the scores of controversial Supreme Court decisions.

Ultimately, whether one is outraged that the Court is engaging in judicial activism or legislating from the bench depends upon whether his or her ox is in the ditch, so to speak.

By making this observation, I certainly intend no disrespect to you John, or anyone else. "We've all been there, done that" - me included!


message 25: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
One of the best sources online to review commentary about this Supreme Court decision, as well as just about everything else that happens there, is SCOTUSblog.com. I check that website nearly every day during the Court's annual term.

SCOTUSblog has collected a series of excellent comments and reactions to the health care care law decision. You may access the Online Symposium (as it is known) at: http://us.mg5.mail.yahoo.com/neo/laun...


message 26: by Douglas, Group Moderator (new)

Douglas (dougkotti) | 193 comments Mod
As always, those wishing to read the Supreme Court's decision on the health care law may access it online via the Court's website: http://www.supremecourt.gov/opinions/...


message 27: by Alan (last edited Mar 25, 2014 08:36PM) (new)

Alan Johnson (alanejohnson) | 26 comments The transcript of today's oral argument in the Hobby Lobby case, which I have just finished reading, is at http://www.supremecourt.gov/oral_argu.... Caveat: I have not read the briefs or the lower court opinions. The oral argument was quite interesting. To me, the most important issue is whether a for-profit corporation can exercise religion and, if so, how. It is quite clear to me that a publicly held for-profit corporation cannot exercise religion. This case seems to limit the issue to closely held for-profit corporations (S corporations) such as family corporations with very few shareholders and directors. If a majority of the Court votes in favor of the Private Parties, it will probably limit its holding to closely held S corporations. As usual, Justice Kennedy will probably be the swing vote, and he did not make his position clear today. Justices Sotomayor and Kagan were quite aggressive in opposing any notion that any for-profit corporation can exercise religion. This is also clearly the view of Justice Ginsburg, who was somewhat less aggressive in promoting it. Justice Breyer was strangely reticent, limiting himself to a few questions about the specific kinds of contraception opposed by the Private Parties. Everyone seemed to agree that the precise issue of whether a for-profit corporation can exercise religion is a question of first impression. If that question is answered in the affirmative, the government still has some complicated fallback positions involving "substantial burden" and other issues involved in the statutory interpretation of the Religious Freedom Restoration Act (RFRA). But all will depend on Justice Kennedy, assuming that Justice Breyer votes with Justices Ginsburg, Sotomayor, and Kagan.


message 28: by Alan (new)

Alan Johnson (alanejohnson) | 26 comments Today's 2-1 decision of a panel of the U.S. Court of Appeals for the D.C. Circuit striking down federal subsidies for otherwise qualified people in the Affordable Care Act (ACA) federal exchange can be accessed here. Today's 3-0 decision of the U.S. Court of Appeals for the Fourth Circuit upholding federal subsidies for people in the federal exchange can be located here. I have not yet read these inconsistent opinions. My understanding is that the U.S. Department of Justice will appeal to the D.C. Circuit Court of Appeals en banc (including all or most of the D.C. Circuit judges not on senior status). Since there appear to be more Democratic than Republican appointees on the en banc court (probably thanks to Senate Majority Leader Harry Reid's recent decision not to allow filibusters on judicial appointments to federal courts below the Supreme Court), the panel decision is likely to be reversed. In that event, both the D.C. Circuit and the Fourth Circuit will have upheld the Obama administration's interpretation of the Affordable Care Act, and the Supreme Court would not feel absolutely compelled to take the case. They still could accept a petition for certiorari from the plaintiffs, however, in which event the outcome would depend on Chief Justice John Roberts and/or Associate Justice Anthony Kennedy, with all the other votes probably falling predictably on either side of the left-right divide on the Court. If, of course, there turns out to be an ultimate split among the federal courts of appeals on this issue, or even if one of the circuits finally holds the Obama administration's interpretation of that part of the ACA unconstitutional, it is probable that the Supreme Court will take the case. The administration probably feels a greater likelihood of success in the en banc D.C. Circuit Court than in the Supreme Court.


message 29: by Alan (new)

Alan Johnson (alanejohnson) | 26 comments Today's decision by a panel of the U.S. Court of Appeals for the D.C. Circuit, holding that the Affordable Care Act does not violate the Origination Clause of the U.S. Constitution, can be located here. The case is Sissel v. U.S. Department of Health and Human Services, Case No. 13-5202.


message 30: by Alan (new)

Alan Johnson (alanejohnson) | 26 comments Alan wrote: "Today's 3-0 decision of the U.S. Court of Appeals for the Fourth Circuit upholding federal subsidies for people in the federal exchange can be located here"

According to media reports, the plaintiffs in the Fourth Circuit case have now filed a petition for a writ of certiorari in the U.S. Supreme Court.


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