United Liberty

Written by Walter Olson, Senior Fellow at the Cato Institute. Posted with permission from Cato @ Liberty.

The U.S. Department of Labor claimed the authority to issue rules governing the H-2B guest worker program on the grounds that the underlying statute provides for it to be consulted as part of the program’s administration. On Monday, the Eleventh Circuit U.S. Court of Appeals curtly rebuffed this “absurd” claim. From its opinion:

In its proposed and final rules, DOL cited two statutory provisions as the source of its rulemaking authority. First, DOL cited 8 U.S.C. § 1184(c)(1), which instructs the Secretary of DHS to consult with the “appropriate agencies of the Government” in resolving whether to grant a foreign worker a visa upon the “petition of the importing employer.” Although there is no grant of rulemaking authority to DOL in this statutory section, DOL asserts that as the result of the permission it grants to DHS to consult with it, DOL “has authority to issue legislative rules to structure its consultation with DHS.” The end result, in DOL’s view, is that it is empowered to engage in rulemaking, even without the DHS.

We reject this interpretation of “consultation.” Under this theory of consultation, any federal employee with whom the Secretary of DHS deigns to consult would then have the “authority to issue legislative rules to structure [his] consultation with DHS.” This is an absurd reading of the statute and we decline to adopt it.

At the end of last week, Ilya Shapiro noted that all of the briefs needed for the Supreme Court to take up the case against ObamaCare had been submitted. And yesterday, SCOTUSBlog reported that the nation’s High Court will finally look at the issue for the first time next month:

The Supreme Court will take its first look at the challenges to the new federal health care law at its Conference on Thursday, November 10.  Five of the six pending petitions (the sixth is not ready yet) were distributed to the Justices’ chambers on Wednesday, for consideration at that private session.  Although a grant of review is not assured, that is highly likely, since all sides agree that the Court should take on the controversy, and the constitutionality of a key provision of the new law has been decided differently by federal appeals courts.

The first decision the Court will face in this historic dispute is whether to grant any of the petitions or any of the issues.   The Justices have the discretion to grant all, some, or none, since none reached the Court as a mandatory appeal.  (The filings in the cases can be found on the Court’s website, here.)

 

It’s official, the Justice Department will appeal the ruling from last month out of the Eleventh District Court of Appeals on ObamaCare to the Supreme Court:

After the individual mandate — a key element in ObamaCare — was struck down last month by a three-judge panel from the Eleventh Circuit Court of Appeals, the Obama Administration has opted to forgo a hearing from the full court and is likely to appeal directly to the Supreme Court:

The Obama administration chose not to ask the 11th Circuit Court of Appeals to re-hear a pivotal health reform case Monday, signaling that it’s going to ask the Supreme Court to decide whether President Barack Obama’s health reform law is constitutional.

The move puts the Supreme Court in the difficult position of having to decide whether to take the highly politically charged case in the middle of the presidential election.

The Justice Department is expected to ask the court to overturn an August decision by a panel of three judges in the 11th Circuit Court of Appeals that found the law’s requirement to buy insurance is unconstitutional. The suit was brought by 26 states, the National Federation of Independent Business, and several individuals.

Since the ruling, the Justice Department had until Monday to ask the entire 11th Circuit to review the case. Administration lawyers didn’t file the paperwork by the 5 p.m. deadline, so the ruling would stand unless the Justice Department asks the Supreme Court to step in.

Yesterday, the Fourth District Court of Appeals dismissed two challenges against the constitutionality of ObamaCare, including the case filed by Virginia Attorney General Ken Cuccinelli, due to the plantiffs’ lack of standing:

The 4th Circuit Court of Appeals said Virginia Attorney General Ken Cuccinelli (R) does not have a legal right to sue over the law’s requirement that most people buy insurance. The court vacated a lower court’s ruling in the case and instructed the lower court to dismiss the suit.
[…]
The 4th Circuit’s long-awaited decision isn’t a huge surprise: those who attended oral arguments in the suits said the judges seemed skeptical of the mandate’s critics, especially Cuccinelli. All three of the judges who heard the case were appointed by Democratic presidents, and two were appointed by Obama.

Virginia Gov. Bob McDonnell said that the will appeal the ruling, not that it’s necessary since ObamaCare will windup before the Supreme Court anyway thanks to the ruling last month in the Atlanta-based Eleventh Circuit, which rejected the Commerce Clause argument.

Over at Cato, Ilya Shapiro, who done some great work on the legal issues of ObamaCare and following it through the court system, believes that the ruling will speed up the Supreme Court taking up the challenge:

Over at Peach Pundit, Todd Rehm has posted a short interview with Bob Barr, a former Congressman from Georgia, on the challenge to ObamaCare that is working its way through the court system; most recently heard this week in the Eleventh Circuit Court of Appeals:

Despite that two of the three judges that heard the Obama Administration’s appeal this week, observers and the media note that the hearing seemed to go over very well for opponents of the health care law.

Yesterday in Atlanta the Eleventh Circuit Court of Appeals heard the challenge to ObamaCare filed by Florida and joined over time by 25 other states:

Judges on a federal appeals court panel on Wednesday repeatedly raised questions about President Barack Obama’s health care overhaul, expressing unease with the requirement that virtually all Americans carry health insurance or face penalties.

All three judges on the 11th Circuit Court of Appeals panel questioned whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates.

The Atlanta panel did not immediately rule on the lawsuit brought by 26 states, a coalition of small businesses and private individuals who urged the three to side with a federal judge in Florida who struck down the law.

But the pointed questions about the so-called individual mandate during almost three hours of oral arguments suggests the appeals court panel is considering whether to rule against at least part of the federal law to expand health care coverage to tens of millions of Americans.
[…]
Hull and Dubina asked the lawyers on both sides to focus on a particular outcome: What could happen to the overhaul, they asked separately, if the individual mandate were invalidated but the rest of the package were upheld?

Parts of the overall law should still survive, said government lawyer Katyal, but he warned the judges they’d make a “deep, deep mistake” if the insurance requirement were found to be unconstitutional. He said Congress had the right to regulate what uninsured Americans must buy because they shift $43 billion each year in medical costs to other taxpayers.

A week after Judge Roger Vinson issued a stay of his own ruling on the unconstitutionality of ObamaCare, the Obama Administration has filed for an expedited review of the case with the Eleventh District Court of Appeals in Atlanta:

The Obama administration has asked a Florida court to hurry up and decide on its appeal of an order that declared the health care law unconstitutional.

The Justice Department filed a motion in the 11th Circuit Court of Appeals for an expedited review of the administration’s appeal, filed on Tuesday.

The department says it has also sought expedited appellate review of rulings made in the 4th Circuit in Virginia and the 6th Circuit in Michigan.

U.S. District Judge Roger Vinson ruled on January 31 that the mandate requiring just about everyone to buy health insurance was unconstitutional, which made the entire law unworkable. The case was brought by 26 states.

Politico reports that the appeal would begin rolling out next month, assuming the calendar is accepted by the 11th Circuit:

The Justice Department proposed that its appeal brief would be due April 18. The 26 states and National Federation of Independent Business would have a month to respond. The Justice Department’s final response would be due June 1.

Brad Joondeph, a Santa Clara University professor who is following the suits, said the schedule could lead to oral arguments in late June or early July.