This afternoon, the Obama administration followed the plaintiffs in HHS v. Florida in asking the Supreme Court for a writ of certiorari. But don’t assume the DOJ has dropped its strategy of delay or that the Court will take up the case.
Why not?
Well there’s that little matter of the Anti-Injunction Act, which I wrote about in the American Spectator last week. If the justices think the AIA applies, they may decide to wait until 2014 to hear any case challenging the mandate.
And, as Bradley Joondeph points out at the aca litigation blog, the DOJ has not merely asked the Court to decide if Congress had the power under Article I of the Constitution to enact the mandate, it has also asked them to decide:
[W]hether the suit brought by respondents to challenge the minimum coverage provision of the [ACA] is barred by the Anti-Injunction Act.
A lot of people are apparently surprised that the DOJ has seemingly reversed the foot-dragging policy it has pursued since the ObamaCare litigation began. But maybe they haven’t. Maybe they’re betting the Court will invoke AIA and punt.
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