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The PJ Tatler

by
Dan Miller

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March 10, 2011 - 8:05 am

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).

3. When a question is certified, the Clerk will notify the parties and docket the case. Counsel shall then enter their appearances. After docketing, the Clerk will submit the certificate to the Court for a preliminary examination to determine whether the case should be briefed, set for argument, or dismissed. No brief may be filed until the preliminary examination of the certificate is completed.

4. If the Court orders the case briefed or set for argument, the parties will be notified and permitted to file briefs. The Clerk of this Court then will request the clerk of the court in possession of the record to certify and transmit it. Any portion of the record to which the parties wish to direct the Court’s particular attention should be printed in a joint appendix, prepared in conformity with Rule 26 by the appellant or petitioner in the court of appeals, but the fact that any part of the record has not been printed does not prevent the parties or the Court from relying on it.

5. A brief on the merits in a case involving a certified question shall comply with Rules 24, 25, and 33.1, except that the brief for the party who is the appellant or petitioner below shall be filed within 45 days of the order requiring briefs or setting the case for argument.

The Federal Government may not support a request for certification, and despite its request for expedited consideration of its appeal on the merits by the 11th Circuit, may well prefer to delay the matter as long as possible so that implementation can continue as long as possible in order later to argue that unraveling would be impossible.  However,  although the Supreme Court could duck the certified issues until after the 11th circuit finishes its work, that is not necessarily what it would do:   both the Federal Government and Judge Vinson have contended with substantial vigor that the matters must be resolved promptly to avoid unnecessary uncertainty and expenditures of funds for all and there seems to be at least a reasonable chance that the Court would hear the matter, perhaps even on an expedited basis, rather than put off the nearly inevitable indefinitely.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.

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