Wednesday, August 17, 2011

The administration's options in responding to the TMLC cert petition

The Supreme Court's online docket sheet continues to indicate that the United States's Brief in Opposition to the plaintiff's petition for a writ of certiorari in Thomas More Law Center v. Obama is still due August 29, a week from Monday. At this point, the United States has a variety of options. To name a few (which may well not be exhaustive):

* It could seek an extension of time from the Court. According to Supreme Court Rule 30 (paragraph 4), such an application "may be presented in the form of a letter to the Clerk setting out specific reasons why an extension of time is justified. . . . The application may be acted on by the Clerk in the first instance, and any party aggrieved by the Clerk’s action may request that the application be submitted to a Justice or to the Court. The  Clerk  will  report  action under this paragraph to the Court as instructed." Unlike an application for an extension of time to file a cert petition, it need not be filed at least ten days before it is due. (This is surely due in part to the fact that parties are not actually obligated to file briefs in opposition to cert, though it would be highly unusual for the United States to decline to do so in a case of this significance.)

* It could file a brief agreeing with the petitioners that certiorari is warranted.

* It could file a brief agreeing in general terms that the question whether the minimum essential coverage provision is within Congress's enumerated powers is worthy of certiorari, but urge the Court to hold the petition until a petition is filed in Florida v. HHS. (The Court may well want to do this, and do it regardless of what the administration urges. But it seems unlikely the administration would ask for this, given that it prevailed on the Medicaid question, which is the only thing that Florida v. HHS offers beyond TMLC--at least from the administration's perspective.)

* It could do largely the same, but instead of urging the Court to hold the petition, it could merely advise the Court that Florida v. HHS raises an additional, related question (the constitutionality of the ACA's Medicaid amendments), and thus, if the Court is interested in that question, it could make sense to wait to see if the states will be filing a petition in that case. The government would likely argue in the same breath, however, that the constitutionality of such spending conditions is well settled, that there is no split, and thus that certiorari in Florida v. HHS on the Medicaid question is unwarranted. (This may be the most likely option.)

* It could file a brief stating that the Court should hold the petition on the grounds that it plans to file a petition for rehearing en banc in the Eleventh Circuit in Florida v. HHS, and if an en banc decision reverses the panel and upholds the mandate, there will no longer be a circuit split, negating the need for Supreme Court review. This, too, seems somewhat unlikely, only because the administration could well pay a significant political price for looking as if it is trying to run out the clock, manipulate the timing of Supreme Court review, and push the Court's decision past the 2012 election. (Then again, who knows? Perhaps the political price in such a strategy would not be so great, and the potential benefit--though perhaps a longshot--of avoiding Supreme Court review altogether is worth it.)

* It could file a brief arguing that certiorari is not presently warranted on the grounds that the issue warrants further percolation in the lower courts (i.e., let us what to see what the Fourth and D.C. Circuits decide). The chance of this seems remote.

Again, this is by no means exhaustive. The administration surely has other choices as well (though no obvious ones are occurring to me at the moment). Regardless, which step the administration takes here should reveal a fair amount about its strategy with respect to timing going forward. No doubt, there are several lawyers in DOJ and the White House thinking long and hard about exactly how to play this.