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At this point, the administration has two choices—within 45 days they can file a petition with the US Court of Appeals for the DC Circuit for the case to be re-heard by an “en banc” panel of all of the sitting judges of the court (at present, there are 8 full-time judges seated at the DC Circuit, and 5 “senior status” judges, meaning that there are 3 vacancies there at the present time (the judiciary act allows 11 full-time judges on the DC Circuit). Of the 8 judges, five are GOP appointments (Chief Judge Sentelle was appointed by Reagan, Judge Henderson was appointed by GHW Bush, and the other three (Brown, Griffiths and Kavanagh) were apponted by GW Bush), and three are Clinton appointees (Tatel, Rogers and Garland). Of the “senior status” judges, Harry Edwards (a Carter appointee) is a Dem, the other 4 (Stephen Williams, Raymond Randolph, Douglas Ginsburg and Laurence Silberman) were Reagan appointees. Seeking “en banc” consideration of the ruling below seems to be a time wasting choice only, as it seems there is no way that Obama could get the remaining 5 full-time judges to reverse the 3 judge panel of C.J. Sentelle, and JJ. Henderson and Griffiths.

The other alternative is that the Obama regime has 90 days (if I remember my civil procedure correctly) to file a Petition for Issuance of a Writ of Certiorari with the Supreme Court. It takes the affirmative vote by statute of four justices on the US Supreme Court to grant such a petition. Therefore, the 4 ‘Rat appointees on the Supreme Court could vote to grant the petition, forcing the entire 9 member court to consider the case on its merits. What happens next is that the court sets down a schedule for briefs (the Regime would file the brief-in-chief, the winning parties at the DC Circuit would file an opposition brief, any intervenors and all of the parties allowed in as “friends of the court” (i.e., amici) would have a date certain to file “amicus curiae” briefs, and then the Regime would have a date to file a Reply Brief.

The Supreme Court can then either order an oral argument to be held before all 9 justices in the famous courtroom on First Street in DC, or can actually hold a vote to decide the case on the briefs. They don’t have to write their own opinion, but could adopt the DC Circuit’s opinion as their own. More likely, they will order that an oral argument be held, and each side will get somewhere between 30 and 60 minutes to argue their respective positions (the Regime is allowed to reserve time, such as 5 minutes, for rebuttal argument, at the end of the proceedings). The argument ends. At the next private conference of all nine justices (usually the Friday morning after the argument), the justices discuss the case among themselves and vote. The Chief Justice announces the vote; if he is in the majority, he decides who writes the opinion; if not, the most senior justice who is in the majority decides who writes the opinion. Each justice is free to write his or her own concurring or dissenting opinion, which is released at the same time that the opinion of the court is released.

However, if three or fewer justices vote in favor of the certiorari petition, the petition is denied, and the case is over.

I think that since this is such an important federal question that deals with the essence of the separation of powers, the Supreme Court is going to take up this case. If this were a normal case, it would not be heard until the next term of the Court which starts in October, 2013, and would not be decided until June, 2014. However, I think that this is a case of unique importance (research the Youngstown Sheet Tube case decided during the Truman administration when HST tried to nationalize the steel industry and was shot down by the federal courts—the late Justice Rehnquist offers a first hand account of the handling of this case in his wonderful book about the Supreme Court) that, since the administration has rattled its swords about not being bound by the DC Circuit opinion, the court could take this up on an expedited basis and lay down the law in a no uncertain terms fashion.