11th Circuit Should Send ObamaCare to Supreme Court

March 10th, 2011

By Dan Miller

On March 8th the federal government, in compliance with an order issued by Federal District Judge Vinson in Florida on March 3rd, filed a notice of appeal with the Court of Appeals for the 11th Circuit. Prior to that March 3rd Order, the federal government had been in rather obvious non-compliance.  As required by Judge Vinson’s Order, the government requested expedited consideration.

The constitutionality and implementation of ObamaCare are at stake and along with them the questions of how the states and federal government should proceed until the entire matter is eventually resolved.  The plaintiffs (twenty-six states) and perhaps also the defendant (the U.S. Government) should promptly ask the Court of Appeals to certify to the Supreme Court the questions of the constitutionality of ObamaCare’s mandatory insurance provisions and, should the Supreme Court find those provisions unconstitutional, whether they can be severed from the remainder.

The Rules of the Supreme Court provide in relevant part,

Rule 19. Procedure on a Certified Question

1. A United States court of appeals may certify to this Court a question or proposition of law on which it seeks instruction for the proper decision of a case. The certificate shall contain a statement of the nature of the case and the facts on which the question or proposition of law arises. Only questions or propositions of law may be certified, and they shall be stated separately and with precision. The certificate shall be prepared as required by Rule 33.2 and shall be signed by the clerk of the court of appeals.

2.  When a question is certified by a United States court of appeals, this Court, on its own motion or that of a party, may consider and decide the entire matter in controversy. See 28 U. S. C. §1254(2).

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8 Responses to “11th Circuit Should Send ObamaCare to Supreme Court”

  1. larry ennis |


    Your feelings pretty much match my own. My biggest fear is the chance that this President and his Department Of Justice will refuse to enforce the Supreme Courts decision. I know that sounds absurd but recent actions of the President point to just such a danger.
    Obama and his Attorney General have already refused to enforce laws that they disagree with.

  2. Tom Carter |

    Yet another overreaction. The Administration hasn’t worried a lot about the Vinson decision because his was one of two decisions against the law, while there have been three in favor of it. You can be certain that once the Supreme Court rules, or even if a circuit court of appeals rules, that all or part of the law is unconstitutional the Administration will follow the law. That’s why it’s important to get this resolved as soon as possible which means, as Dan said, getting it to the Supreme Court now.

    And yes, you’re right, it does sound absurd to believe that the President and the Attorney General will refuse to observe a Supreme Court decision. What we need is a little more informed thought and a lot less reliance on extremist conspiracy theories.

  3. Brian |

    Tom, I don’t know if I’d call this an over-reaction yet. Obama and his proxy Salazar have certainly thumbed their noses at the judge that lifted the moratorium on drilling in the Gulf.

  4. Tom Carter |

    Brian, it’s a good deal more complicated than that. The judge struck down the first moratorium because the government didn’t properly explain/justify it. Then when it came to the second moratorium, a new action, a lengthy explanation came with it. The judge ruled the government in contempt, and that may be appealed. From what I read, there’s a good basis for appeal.

    The judicial and executive are separate branches of government. There are limits to what a judge can order the executive branch to do, and there is room for the two to disagree. They do it all the time, and the executive branch routinely represents itself in court actions. District court rulings can be confused and conflicting, as we’ve seen on ObamaCare. Even appeals court rulings normally apply only within the geographical area of their circuit. However, once it comes to a definitive Supreme Court ruling, the Obama Administration will abide by it.

  5. Dan Miller |

    All the more reason for the Eleventh Circuit to certify the questions to the Supreme Court promptly. Until the Supreme Court issues its decision, implementation of ObamaCare will “progress” as scheduled making its eventual unraveling increasingly difficult and expensive.

  6. Dave |

    While the 11th Circuit may certify this question to the Supreme Court, in the pending VA case there is a request by VA to go to the Supreme Ct. and for that court to take jurisdiction of all the related questions around the country. The Supremes can and should do that in response to VA’s request. For more on this:


  7. Tom Carter |

    Thanks, Dave. I think you and Dan are both exactly right. The sooner this mess gets resolved the better. I can’t imagine why the Court wouldn’t see it the same way, consolidate all the cases, and get it done.

  8. Dan Miller |

    Either could work; both together might be better than either separately. I suspect that requests by parties for certification are substantially more common than certifications by courts of appeal and that one or more of the latter could push the Supreme Court more effectively than several of the former.

    The Supreme Court generally likes to have issues narrowed by the lower courts. However, here the issues seem to have been narrowed adequately by several district court decisions and further narrowing by the courts of appeal probably would not be as helpful as is normally the case.

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