As the dust begins to settle from all of yesterday's events, it is probably appropriate--at least in a preliminary sort of way--to take stock of what those events mean. (Howard Bashman at How Appealing gathers commentary from around the web here. And Timothy Jost offers his take here over at Health Affiars. )
None of this is rocket science. But I thought it worth noting the following three developments as particularly significant:
* First and foremost, by asking the Court to grant cert in HHS v. Florida, the Obama administration virtually guaranteed that the Court will take the case and decide it this term--with the argument probably taking place in March, and a decision handed down in June. I cannot think of an occasion in recent history where (a) a lower court has declared a federal statute unconstitutional, (b) that decision created a circuit split, (c) the government asked the Court to grant review, and (d) the Court denied cert--let alone on a question of this magnitude. So the Court's review is now essentially assured.
* That does not mean, though, that the Court will necessarily reach the merits. As I have written before, one can imagine a collection of five justices, perhaps moved by different motivations, coalescing around a jurisdictional holding that prevents the Court from deciding whether the Act is constitutional. In this respect, it is therefore significant that the government (as revealed in the papers filed yesterday) remains committed to the position it has taken recently in the circuit courts--namely, that the Anti-Injunction Act does not preclude the Court from hearing a pre-enforcement challenge to the minimum coverage provision. Of course, the Court could nevertheless find the AIA bars review; it has a constitutional obligation (under Article III) to assure itself of its subject matter jurisdiction, regardless of what the parties argue. But the fact that the parties are united against such a reading of the AIA makes that result marginally less likely.
* It is interesting--and surprising--that the states (presented as question 2 in their petition) have asked the Court to review whether Garcia v. San Antonio Metropolitan Transit Authority remains good law, or whether it should be reconsidered. Garcia establishes a bedrock principle of contemporary federalism, permitting Congress to subject the states to "generally applicable" regulation--regulation that, more or less, applies to all persons or entities equally. Thus, Congress can regulate state governments as employers (or polluters or proprietors) in the same way it can regulate Microsoft or Google or United Airlines or whomever else. Congress can require all of them to pay a minimum wage, not to dump toxins into rivers, and the like. If the Court were to dislodge Garcia in some way, it would have major ramifications. (I should note here that just because the states have raised this as a question in their petition does not mean that the Court must grant on it. Indeed, the Court could grant the petition and limit its review to questions 1 and 3, or even just question 3, which concerns the individual mandate.)
No doubt, there is more of note to be culled from yesterday's events. But to me, those are the three most important developments in terms of adding to or altering what we already knew before Wednesday.
We shall soon learn, I would guess, whether the parties plan to file responses to the respective petitions, and whether the Court wants their responses regardless. (The Court generally does not grant a petition for certiorari without having seen a response, but this case is different, with both sides agreeing that cert is justified.) And that will determine the timing of the Court's grant of review and, in turn, the date of the argument.
In other words--at long last--the real game is just about on.
