Lawyers in the blogosphere have decided that Supreme Court review of the Affordable Care Act is a foregone conclusion. Odds makers are, no doubt, taking bets on when the Court will hear arguments and how it will rule. The preliminary phases of Affordable Care Act challenges, however, are not finished.
Last week, while pundits held their breath waiting to see if the Obama Administration would file a notice of appeal for an en banc hearing in the Eleventh Circuit, the D.C. Circuit Court of Appeals heard oral arguments in Seven-Sky v. Holder, its own individual mandate case.
The Seven-Sky plaintiffs are challenging the Affordable Care Act under the theory that it violates their religious beliefs. They claim that the government does not have a right to force them into the healthcare marketplace to buy insurance because they believe God will protect them. The government maintains that citizens who forego health insurance affect commerce by shifting "substantial costs to providers and insured customers," reports ABC News.
The Obama Administration has arguably shifted its focus from the circuits to the Supreme Court after 5 of the 13 circuits issued opinions Affordable Care Act cases. (The Sixth Circuit upheld the individual mandate provision, the Eleventh Circuit struck it, and the Third, Fourth, and Ninth Circuits have dismissed individual mandate challenges for lack of standing.)
On Monday, the Justice Department announced that it would not seek an Eleventh Circuit en banc hearing, and on Wednesday, the administration urged the Court to not review the Sixth Circuit case, Thomas More Law Center v. Obama.
Does the D.C. Circuit Court of Appeals challenge even matter? Some who attended the arguments last week claim that it will. Georgetown Law Professor Randy Barnett said that during arguments, Circuit Judge Bret Kavanaugh outlined a "four-point analysis that summarized several lines of questions and that might well provide the structure for a majority opinion in the case," reports the Volokh Conspiracy.
While the Seven-Sky litigation is a latecomer in the Affordable Care Act fray, a D.C. Circuit Court of Appeals opinion could still be a game changer.
- 6th Circuit says Obamacare is Constitutional (FindLaw's Sixth Circuit blog)
- Five Things to Know About the Supreme Court Healthcare Appeal (FindLaw's Supreme Court blog)
- Eleventh Circuit Strikes Individual Mandate (FindLaw's Eleventh Circuit blog)