The Obama administration on Thursday filed a brief [PDF] in the US Court of Appeals for the Eleventh Circuit [official website] contesting a request by plaintiff states to have the health care reform law [HR 3590 materials; JURIST news archive] appeal heard by an en banc court. The states had originally requested en banc review, along with an altered briefing schedule [SCOTUSblog report], on March 10. In its brief, the government asserted that initial en banc review is reserved for "extraordinary cases", where "panel review would be futile in the face of binding circuit precedent," and no such precedent exists in this area. The government also pointed to the fact that the US Court of Appeals for the District of Columbia Circuit has denied a petition [order, PDF] for an initial en banc hearing of an appeal on the health care law. The briefing schedule was also a target of the government's brief, as Department of Justice (DOJ) attorneys stated:
Nor is it apparent that the briefing schedule would provide adequate time for the Court to review the district court's opinions and the briefs submitted by the parties and their amici. Under the Court's order, briefing will conclude on May 25, which would give the full Court only two weeks before the June 6 en banc sitting to consider an appeal that, in plaintiffs' view, "is unprecedented in its scope, scale, and importance."While the brief detailed the reasons why initial en banc review is unwarranted, in concluded by stating that the government is prepared to proceed no matter the court's decision.
Last week, the Eleventh Circuit granted [JURIST report] the Obama administration's motion for an expedited appeal, but it had not addressed the states' motion for the appeal to be heard en banc. Last month, Virginia Attorney General Kenneth Cuccinelli filed a petition for a writ of certiorari [JURIST report] with the US Supreme Court [JURIST news archive] asking the court to rule on the constitutionality of the law on an expedited basis, before the US Court of Appeals for the Fourth Circuit rules on the issue, but the Obama administration opposes the petition [JURIST report]. In January, a judge for the US District Court for the Western District of Virginia dismissed a lawsuit [JURIST report] challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled that the law is constitutional [JURIST report] under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax.