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  • Why the DOJ Gave Up Its Delaying Tactics in the Obamacare Litigation

    Many predicted the Obama Administration would not stop its delaying tactics in the ObamaCare litigation, which most commentators thought were an attempt to prevent the Supreme Court from deciding the case before the 2012 elections.  The Administration received the equivalent of two judicial reprimands in the case brought by 25 states and NFIB that it ultimately lost in the U.S. Court of Appeals for the Eleventh Circuit.  It was that very case in which the Administration could have tried one more delaying maneuver, by asking the full court (en banc) to rehear the case.  Its decision late yesterday not to drag that case out further and allow a clear path to Supreme Court review is worthy of praise, regardless of the reasons.

    It’s certainly possible that the Administration really believes its troubling legal theory that Congress can regulate practically anything, as long as some chaos-theory connection can be found between the desired government regulation and something in commerce—which means everything.  But there are several other factors that made further government delay untenable:

    • In an unusual, but inspired legal move, the 25 states and NFIB had asked the full Eleventh Circuit Court to hear the case in the first instance (last spring), and the Obama Administration opposed that motion.  The Administration could have argued that that was before it lost the case, and now the full court should give it another bite at the apple, but that would be have been a more difficult argument to craft than in the regular order.
    • There are at least three reasons to believe the Eleventh Circuit would have denied the request for en banc review, including that it voted against hearing it en banc already, the equitable arguments for expedition advanced by NFIB and the states last spring are even more powerfully in their favor now, and the composition of the judges on the full court.
    • A failed effort at en banc review probably would not have been enough to stop the Supreme Court from hearing the case in its new term anyway, but might have further embarrassed the government.
    • The government’s abandonment of delay in the Eleventh Circuit might give it slightly more maneuvering room (and credibility) to make an argument to the High Court about which case or cases to hear, and to ask a predictably unsympathetic panel in the DC Circuit that just heard another ObamaCare challenge to stay its ruling pending Supreme Court resolution.
    • And finally this thought:  If the government did prevent the High Court from ruling on the case before the 2012 election, and Obama was not re-elected, the new President might take a page from the DOMA non-defense and decide not to defend ObamaCare, confessing error, and leaving it to someone else appointed by the Court to argue the case.

    In short, the Administration did not have a lot of good options.  I’m still willing to pat the litigators on the back for doing the right thing, but I am also savvy enough to suspect that they would have sought a further delay if they thought the government would prevail in preventing the Court from hearing the case at all during an election year.

    Posted in Featured, Obamacare [slideshow_deploy]

    14 Responses to Why the DOJ Gave Up Its Delaying Tactics in the Obamacare Litigation

    1. Greg B. says:

      It is my contention that the Obama DOJ has so many irons in the fire that it is bound to screw up somewhere. Obamacare is the least likely to lead to a disgruntle exit from the White House. Solyndra, Fast and Furious, and law suits against the states regarding illegal immigration laws has stretched the DOJ pretty thin. It needs to concentrate it's interests on those issues that will not jeopardize Obama's presidency.

    2. Dick says:

      Time to work on getting Kagan off the case.

    3. Cynthia says:

      I am praying every day that when the court takes it up, it will rule it unconstitutional. Elena Kagan should recuse herself since she helped write the law and agued it in court, although I doubt she will. So it will likely be a 5-4 ruling.

    4. Daver says:

      First and foremost–just because logical Americans can't think of a reason for the regime to stop stalling a Supreme Court ruling does not mean that regime has given up on it's subterfuge.

      But also understand that if Obumma gets slapped down by the Supremes you know that he is going to claim the cancellation of the program was a $2T savings and therefore he can afford to really stimulate the economy!!

    5. chatmandu002 says:

      This is an attempt to get this issue behind the president before the elections so he can blame the republicans for not doing anything on healthcare. Obama will try to make it look like the republicans are not helping the poor and those not covered by health insurance. He will campaign on a single payer (government) option instead.

    6. jusayin says:

      I agree that Justice Kagen SHOULD recuse herself it is my fear that she won't.
      the one Justice that will recuse will be Thomas because he has integrity

    7. Lynda says:

      I am already beginning to feel the effects of O-Care. I am privately insured and pay hefty premiums, but was notified two weeks ago that a drug I have been prescribed and have taken since 2004 for a chronic auto-immune disease will no longer be approved by my insurer because of cost. I was relegated to a toxic cancer drug because it is cheaper. Mind you; no discussion was had with my doctor, a bureaucrat at the insurance company has deemed the drug too expensive! My alternative? File an appeal that could take six months to hear all the while suffering from a disease that was being successfully treated with the drug my doctor prescribed! Single payer system? Big government delegating who gets what and when?
      I took pray daily that O-Care is ruled unconstitutional and thrown out along with it Barack Obama!

    8. Scot L. - New Jersey says:

      I'd like to see the DOJ spend some time looking at the illegal acts that the POTUS is proposing with waivers for NCLB. Another illegal extension of power attemped by a petulant, impatient, would-be dictator. PPACA will be struck down by SCOTUS and since the legislation contains no severability clause, if the individual mandate is unconstitutional (as we all know it is), then the whole law has to be struck down.

    9. RennyG says:

      Why isn't the republican controlled house jumping all over this, even when it started!!!! Do you think this guy can't get to these judges like he has stepped all over everyone else with his czars?? Why are we waiting for, "no backbone??" Or just waiting for someone else to do the job???

      • howiem says:

        Before jumping all overt the Republican controlled house, why don't you look at all the legislation that has been introduced in the house since the 112th congress started? Many items have been passed by the House, but went dead in the Democratic controlled Senate.

    10. dam1953 says:

      Consider Obama's ongoing campaign strategy. He throws a junk jobs bills at congress that he knows won't pass just so he can blame them for his administration's failures. He travels the country advocating class warfare. A Supreme Court ruling against Obamacare in advance of the election is one more piece of ammunition for his class warfare effort. He can then rouse his base with claims that the conservative court, along with the Republican house have blocked his every effort to help to poor and downtrodden. I can hear him now, "if not for them the US would be at full employment".

      Get ready, no matter what ruling is handed down by the Supreme Court, Obama will use it in his campaign, and a loss fits his current strategy best.

    11. chatmandu002 says:

      It doesn't matter that the SCOTUS declares Obamacare unconstitutional, the decision will help Obama campaign on a single source provider, which is what he wanted in the first place. Obama will campaign that it will be republicans against the middle and poor class warfare on healthcare.

    12. higginspit says:

      I'm really getting fed up with all of the bureocrats, well the majority of them, that are using their political position to turn our once great country into a giant cesspool of corruption to pad their pockets while changing our Republic into another Muslim Brotherhood territory! It's happening and our hands are tied because even or law enforcing agency's have been bought out. They are taking control of what kind of light bulb we have to use to being watched by satellite of our every move. Freedom is fading fast. Something has to be done fast to salvage whats left of the great country I used to know! Where do we go from here, it's up to us, the people!

    13. Edward says:

      We are in a life and death struggle for this nation. This communist healthcare takeover has been in the shadows since the leftist Roosevelt days. Because the UK was so beaten down after WWII, the people allowed their healthcare to be run by the government goons. We must never allow this. Like Sir Winston Churchill said regarding the Nazis, we will fight them in the air, on land and sea. In our case we will fight this bunch of thugs and WILL prevail. The demoncrat thugs know we didn't want it and they also know we are not forgetting either. Justice Thomas must not recuse himself. The leftist thugs know that he knows that this unconstitutional piece of dung is not valid. Kagan is a female version of the sleaze Obama. Neither have any class and are both Marxists. Bottom line: Kill this piece of dung by every means possible. Refuse to abide by it because it is unconstitutional. Kick the thug Marxists out of Congress and the thug that slipped into the White House.

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