Today was the deadline for the Obama Administration to seek something known as en banc review — a procedure allowing an entire court of appeals to review a three-judge panel’s decision — of the Eleventh Circuit’s erroneous decision striking down part of the Affordable Care Act. The Administration has decided not to seek this review.
This is significant not because the full court is likely to reverse the panel’s error — the Eleventh Circuit is a notorious hotbed of far right conservatives — but because it reflects the Administration’s understanding that it has little to gain from delaying this case’s ascent to the Supreme Court. One effect of an en banc petition is that it significantly extends the amount of time DOJ can wait before it has to seek review of the court of appeals’ decision in the Supreme Court. Because DOJ did not ask the full court of appeals to weigh in, it is now exceedingly likely that the Supreme Court will consider this case during its 2011-2012 term.
It is not the least bit surprising that the Obama Administration passed up this potential opportunity to delay the case until after the next Supreme Court term. For one thing, the Administration has consistently chosen not to engage in delay tactics throughout this litigation. Most recently, DOJ refused to argue that the courts lack jurisdiction to hear the case until 2015 despite the fact that one court of appeal concluded that they do lack jurisdiction and another expressed sympathy with that view. More importantly, the Administration should be eager to get this case in front of the justices since they are overwhelmingly likely to win once the case gets there.
The biggest loser in the Administration’s decision not to file are the handful of right-wing commentators who have claimed — despite no evidence to that effect — that DOJ would seek en banc review as part of some nefarious plot to delay the litigation. The most prominent of these commentators was former DC Circuit nominee Miguel Estrada, who touted this theory at a recent panel hosted by the American Constitution Society:
The strategy of the Administration is to do cartwheels to keep the case out of the Supreme Court so as not to have a ruling before the 2012 election. I mean, they take every extension. They do everything they can to stretch it out . . . . I will bet you any amount of money that the Administration is going to seek en banc in the Eleventh Circuit.
Estrada is one of the nation’s top appellate litigators, so he knows better than to make this kind of claim despite the vast wealth of evidence to the contrary. In 2003, Senate Democrats blocked Estrada’s nomination to the U.S. Court of Appeals for the DC Circuit because they were concerned that, despite Estrada’s significant legal talent, he would be unable to ensure that his legal analysis on the bench is untainted by his own desire to see the law through a conservative lens. That decision is looking pretty good today.