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Will the Court Duck the ACA? Should It?


In light of the Obama administration’s decision not to seek an en banc rehearing of the 11th Circuit’s ruling that the ACA is unconstitutional, there has been some good stuff written about the possibility that the Supreme Court will duck the issue with a jurisdictional ruling.

I have a piece up at the Prospect that makes a couple points about this I haven’t see elsewhere yet.   First, the fact that the Roberts Court has limited standing in other areas is neither here nor there in terms of whether they will do it here.   Supreme Court majorities limit standing to litigants whose claims they favor approximately never.   And, second, for the Supreme Court to duck the issue now and then issue a ruling after the election would be the worst of all worlds.    While paeans to the passive virtues have become increasingly common, I prefer transparency myself.   Anyway, click over for the whole argument.

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