Monday passed quietly with no sound of shuffling paper from the Department of Justice (DOJ) as they opted not to file a request for full review by the 11th Circuit Court of Appeals. The 11th Circuit decision is the darling of the media due to its large 26-state following. The case came about because a group of state attorneys general and some governors alongside the National Federation of Independent Business (NFIB) challenged the constitutionality of the requirement that all Americans purchase health insurance by 2014 if they can afford it.

The states and NFIB won their challenge in the 11th Circuit, leaving the Obama Administration with two options: file for a full review, or en banc, of the case (this means that most or all of the 11th Circuit judges review the ruling) or appeal directly to the Supreme Court. In the end, DOJ decided to bypass the en banc process. Alternatively, the full review request would have stalled the momentum toward the Supreme Court and potentially moved any court hearing into a post-election environment.

So we must assume that the DOJ is either feeling highly confident in their track record – the mandate was upheld in the 6th Circuit Court of Appeals, dismissed by the 4th Circuit Court of Appeals – or they believe that dismantling the political theater surrounding these cases regardless of the outcome is the most productive path to ACA implementation. Let us hope that it is both. Rumor has it that the Supreme Court closely watches the DC Circuit, and this Circuit heard an ACA-challenge case last Friday. That decision will be closely watched.

There is now a strong likelihood that the Administration will appeal directly to the Supreme Court and that the Supreme Court will take the case. The Supreme Court rarely rejects requests from the Federal government. The due date for this is November unless the DOJ asks for an extension. The plaintiffs, on the other hand, are feeling empowered by their 11th Circuit Court of Appeals win coupled with their high-powered lawyer, Paul Clement, former Solicitor General and experienced at arguing cases before the Supreme Court.

The next move is by Department of Justice. Wonder what they have up their sleeve? Here’s hoping it’s something good.

Politico has more information on potential timing of SCOTUS here.

— Eva Marie Stahl, Policy Analyst