Obama Administration Decides Not to Petition for Rehearing in Eleventh Circuit Mandate Case

So reports the ACA Litigation blog. I’m quite surprised, as normally DOJ would delay a case like this as long as possible– and try to eliminate the split — with a petition for rehearing. So it looks like it’s on to the Supreme Court, with a DOJ-filed petition for certiorari coming soon. That would make it extremely likely the Supreme Court will take the case, and presumably the Court would be able to hear the case this Term and decide the case by late June 2012.

There are lots of possible reasons why the Administration might have decided not to seek rehearing. Without personal knowledge of which mattered, I don’t think we can do more than just speculate as to the reason or mix of reasons. Perhaps they simply concluded that the prospects of success in a petition for rehearing were remote, and that the 11th Circuit judges who might write opinions respecting the denial of rehearing would hurt the government more than help it. Perhaps they figured that the Eleventh Circuit was the best vehicle for review, so it was better to petition from that case. Perhaps they just figured that it’s in everyone’s interests to resolve a facial challenge sooner rather than later. Perhaps the Obama Administration wanted the case decided in the middle of the Presidential campaign, for reasons of either electoral or litigation strategy. Alternatively, perhaps the recent oral argument in the DC Circuit convinced them that Silberman and Kavanaugh were likely to vote to strike down the mandate and write a better opinion doing so than had the 11th Circuit, making review of the 11th Circuit’s decision more desirable for the government’s side. Or perhaps they shook up the Magic 8 ball, asked if they should petition for rehearing, and it came up, “my reply is no.” It’s hard to say.

Meanwhile, the folks that should be most excited about DOJ’s decision are the new set of Supreme Court law clerks. Their Term just got a lot more interesting.