Tuesday, March 15, 2011

Will the Florida challenge to the Individual Mandate reach the Supreme Court first?

On March 11, I indicated the likely timing and effect of the Virginia healthcare appeals.  Apparently the states in the Florida healthcare case had made their own attempt to expedite their schedule and leap in front of the Virginia appeal. 

My post on timing of the Virginia appeal can be found here:

As indicated on the SCOTUS blog, the states in the Florida case petitioned the 11th Circuit Court of appeals to go straight to en banc review.

Coverage here:
And here:

En banc review is a hearing before all of the judges on the Circuit Court.  It is not a common procedure, but is likely to occur in major Constitutional cases such as the cases challenging the PPACA.  In normal appeals a three judge panel will hear and rule upon a case.  After receipt of a ruling a losing party may petition the Court for en banc review.  En banc review is very uncommon, and usually denied.

Nonetheless the hearing for the appeal in the Virginia case in May will likely result in a second hearing en banc which will occur a few months later.  The states in the 11th Circuit are trying to avoid the intermediate step of a three judge panel.

Sometimes legal news moves quickly . . . according to an update on the Scotus blog linked above the Eleventh Circuit has expedited briefing but neither granted nor denied en banc review.  Reviewing the link for the briefing order in the Florida case it is clear briefing will not be complete until May 25, 2011.  This is two weeks after the three judge panel hears the case in the Fourth Circuit.  

The result: If the Eleventh Circuit grants en banc review, and the Fourth Circuit grants en banc review after the original panel ruling, both cases will be completed at roughly the same time.  The Eleventh Circuit ruling will be only slightly ahead of the Fourth Circuit.  If the Eleventh Circuit denies en banc review, Virginia will maintain its prime position to be first to bring its challenge to the individual mandate to the Supreme Court.

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