There is an odd asymmetry with respect to the Solicitor General’s position on Supreme Court review of Obamacare in 2011 and 2014. In 2011, you may recall, the 11th Circuit Court of Appeals invalidated the individual mandate. At the time, the 6th Circuit Court of Appeal had already upheld the law (remember that other significant Jeff Sutton case?). Decisions were still pending in the 4th and D.C. Circuits.
The S.G. had a choice. He could petition for rehearing en banc in the 11th Circuit. If the court took the case en banc, and vacated the opinion, the Circuit Split would disappear. Perhaps, the 11th Circuit would disagree with the panel decision. At which point (and we know in hindsight), all of the other courts of appeals would have upheld the law. Then, there was no reason for the Supreme Court ot even take the case.
The S.G., rather than trying to eliminate any circuit split, petitioned for certiorari, and brought this case to the Supreme Court right away. In its brief, the S.G. wrote that the Court must take the case right away–rather than let the lower courts handle it–and “put these challenges to rest.” What sense was there in waiting when such a significant piece of legislation was in legal doubt.
Now, three years later, the Solicitor General has taken a different position with respect to Obamacare. Much like in 2011, there was a Circuit Split. One Court of Appeals (the 4th) found that the IRS rule providing tax credits in states without exchanges was valid. Another Court of Appeals (the D.C. Circuit) found that the rule was invalid, and millions of dollars were illegally being spent. The S.G., faced with the option of again allowing the Supreme Court to “put these challenges to rest,” opposed certiorari, and asked the D.C. Circuit for rehearing en banc.
Why the difference? Well for one, as President Obama noted in the interview with Jeff Toobin, the D.C. Circuit is now stacked with a majority of judges appointed by Democratic Presidents, who, if Harry Reid is to be believed, will vote in favor of upholding the rule in Halbig. Because of this “realignment,” rehearing en banc was sought. But more fundamentally, the government is now content to allow this issue to linger on, even though millions of dollars in subsidies are potentially being spent in violation of the law. The hope is that by allowing people to rely on potentially illegal appropriations, it will be harder for a court to invalidate it. But, this very fact supports the Court getting involved sooner to prevent future illegal activity that generates irreparable harm.
The same sort of equities that favored the S.G. not seeking rehearing en banc from the 11th Circuit would counsel in favor of not seeking rehearing en banc in the D.C. Circuit. But this is not the route the S.G. chose.
Making this argument forcefully is the reply to the government’s brief in opposition to certiorari in King v. Burwell, the 4th Circuit case. The brief, filed by Jones Day, was signed my Mike Carvin, who was counsel of record for NFIB in NFIB v. Sebelius. As far as advocacy, this brief is superlative, and I encourage you to read it in its entirety.
I also want to draw attention to the lead associate who worked on the brief, my friend and colleague Yaakov Roth. While the WSJ saw fit to call it “Carvin’s ObamaCare Tour de Force,” Yaakov was instrumental in the formation of the arguments in response to the S.G.