Friday, July 6, 2012

Update on Coons v. Geithner

This is the case in the District Court for the District of Arizona, brought by some members of the House of representatives, among others. The plaintiffs made two principal claims in their complaint: (1) that the individual mandate exceeds Congress's enumerated powers, and (2) the Independent Payment Advisory Board (established by the ACA to review Mediare reimbursement rates) violates separation of powers principles. The first claim is now dead, and thus should be dismissed forthwith. The second remains technically viable, though, and the District Court may schedule argument on the issue. The essence of the claim appears to be that the statute's charge to the Board violates the non-delegation doctrine by delegating too much (or insufficiently cabined) discretion. Thus far, the District Court has taken no action in the wake of NFIB v. Sebelius. 

Tuesday, July 3, 2012

Update on Goudy-Bachman v. HHS

This is the case in which Judge Conner (M.D. Pennsylvania) declared the minimum coverage provision unconstitutional, and which the United States then appealed to the Third Circuit. The case has been on hold pending the Supreme Court's decisions. Now, the case is clearly done. The only issue raised was whether the mandate exceeded Congress's enumerated powers, and that has been resolved. The Third Circuit has yet to take any action, but presumably the matter will soon be dismissed.

The Chief arrives in Malta

A nice place to avoid any discussion of switches, leaks, fits of pique, or the taxing power.

Update on Physician Hospitals of America v. Sebelius

This is the case that was argued back on April 3 in the Fifth Circuit, in which there was a brief kerfuffle about whether the administration still respected the federal judiciary's authority to declare acts of Congress unconstitutional. The case actually has nothing to do with the individual mandate. Rather, the plaintiffs challenge ACA §6001, which extends the preexisting Medicare anti-kickback provisions to physician-owned hospitals. The provision is complicated, and it contains distinct grandfather provisions for hospitals operating or under construction as of 2010. Hospitals in violation of the provision are ineligible for Medicare reimbursement.

The plaintiffs challenged §6001 as a violation of the Takings and Due Process Clauses of the Fifth Amendment. What seems to remain on appeal is the claim that the regulation effectively amounts to a regulatory taking (or its equivalent).

Again, oral argument took place on April 3, and no doubt the Fifth Circuit panel was waiting to see whether the Supreme Court might moot the case by declaring the entirety of the ACA unconstitutional. Now, one would expect the Fifth Circuit to issue its opinion in due course. (There have been no new docket entries since early April.)

Update on U.S. Citizens Association v. Sebelius

This is the case currently pending in the Sixth Circuit which, because it challenges the constitutionality of the minimum coverage provision, was also put on hold pending the Supreme Court's decision. Unlike many other cases, however, this case was not mooted, as the plaintiffs are now challenging the mandate on different grounds. Specifically, the plaintiff-appellants now have three remaining claims:

1. That the minimum coverage provision violates their right to "liberty" protected by the Due Process Clause of the Fifth Amendment.

2. That the minimum coverage provision violates their rights to "intimate association" and "expressive association" protected by the First and Fifth Amendments.

3. That the minimum coverage provision violates their constitutional right to privacy, protected by the Due Process Clause of the Fifth Amendment.

This case has been fully briefed. (You can find the briefs in the column to the right, after scrolling down a ways.) It was scheduled for oral argument, but then was taken off the court's calendar once it became clear that the Supreme Court decision (if it had invalidated the mandate) might moot the matter. Now the parties are to file new papers, and the court will presumably re-schedule the case for oral argument.

Nothing yet in Kinder v. Geithner

I just checked the Eighth Circuit's electronic docket through PACER, and there has been no movement on Kinder v. Geithner. This was the case orally argued October 20, and which has been stayed pending the Supreme Court's decision. The district court dismissed the case for lack of standing, but the parties also argued the merits in the court of appeals. The Eighth Circuit should now affirm the district court, or simply dismiss the case as moot, as the only merits issue was whether the minimum coverage provision exceeds Congress's enumerated powers.

Cert denied in the four held cases

As loyal reader Mark Regan has pointed out to me, the Supreme Court quietly on Friday issued an order list denying certiorari in all the ACA cases that were being held for NFIB v. Sebelius, HHS v. Florida, and Florida v. HHS. To refresh your memory, those were:

* Thomas More Law Center v. Obama

* Virginia v. Sebelius

* Liberty University v. Geithner, and

* Seven-Sky v. Holder

You can find the order list here.

In addition, there remain several cases still pending in the lower courts challenging the constitutionality of the minimum coverage provision as exceeding Congress's enumerated powers. Those should all be dismissed (at least on that claim) shortly.

Nonetheless, there remain a number of other cases, raising other issues, that presumably will continue to be litigated. And there are perhaps new legal issues yet to emerge in actual lawsuits. I will try to have a post up by the end of this week summarizing that landscape.

Sunday, July 1, 2012

A second "switch in time"

By another Justice named Roberts.

Jan Crawford, appearing this morning on CBS News's Face the Nation, is reporting this morning what most all of us have suspected. Specifically, two unnamed sources have told her that the Chief Justice switched his vote about a month ago. The basic outlines of this scenario make sense, as they explain a number of the anomalies in the various opinions. In particular, it explains why the dissenters--upset by the Chief's switch--(1) included an oddly duplicative Commerce Clause analysis in their joint dissent, (2) jointly signed the dissent, to signify they were hanging the Chief out to dry, and (3) made little effort to fully edit their joint dissent to reflect its status as a dissent, passively aggressively leaving all sorts of tantalizing clues for us to infer what happened. (Crawford actually reports that the joint dissent never was a majority; rather, the failure to even respond to the Chief's opinion, and only to Ginsburg's, was reportedly due to the dissenters' intent to simply ignore the Chief, to not dignify him with any sort of engagement.) Here is the crucial passage from Crawford's piece on CBS's web site:
Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations. 
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy -- believed by many conservatives to be the justice most likely to defect and vote for the law -- led the effort to try to bring Roberts back to the fold. 
"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this." 
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said. 
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.
You can access here entire article here. Randy Barnett writes about it here.

Sometimes in life--probably most times--events like this week's opinion are anti-climactic, not nearly as dramatic as the expectations could support. But then there are those rare moments where the anticipated event is all that and then some, offering drama beyond all our reasonable imaginations. We seem to have gotten the latter here. Wow. Wow, wow, wow.

Friday, June 29, 2012

A mega roundup

I know I am missing a ton of interesting stuff out there, but here is my best shot. A list of interesting commentary and analysis after the jump (i.e., more reading than the 193 pages the justices themselves wrote). I will be updating this list throughout the day:

Thursday, June 28, 2012

A Marbury for our time

(Note: a revised version of this essay is now posted here at SCOTUSblog.)

Chief Justice Roberts’s opinion held that the minimum coverage provision falls within Congress’s power to impose a tax, and thus is constitutional. At the same time, he concluded that the mandate exceeded Congress’s power to regulate interstate commerce. Moreover, he (along with two Democratic appointees, Justices Breyer and Kagan) also held that the Act’s dramatic expansion of the Medicaid program is unconstitutional insofar as it jeopardizes the states’ preexisting Medicaid dollars. In short, the Chief Justice upheld the entirety of the ACA, but with some important caveats.

The end product was—not to put too fine a point on it—brilliant. It is brilliant act of judicial statesmanship in a way that parallels another landmark decision, Marbruy v. Madison.

Marbury is best known for its statement in defense of judicial review, the authority of the Court to declare acts of Congress (and the executive branch) unconstitutional. But to really understand Marbury, one has to place the Great Chief Justice's decision in its political context. In February of 1803, Chief Justice Marshall knew that the Jefferson administration would have completely ignored the Court’s decision in Marbury had the justices ordered Madison to grant Marbury his judicial commission. (Indeed, the administration did not even dignify the proceedings by appearing. Only one side argued at the Court.) Thus, Marshall reached the Court's conclusions—that the Jefferson administration had acted unlawfully, and that the Court had the authority to say so—while ultimately holding that the Court lacked jurisdiction, forcing it to dismiss the case. Marshall asserted the Court's authority in a muscular fashion, delineating the constitutional constraints on Congress and the President, but without actually challenging the other branches' powers. Marshall set down important constitutional markers while reaching an immediate result that favored the incumbent President, shielding the Court from any significant political danger or threat of retribution.

In the Health Care Cases, the immediate danger to the Court was not so grave or immediate. There was no chance that the President would simply ignore or disobey the Court’s judgment. Indeed, a sizable majority of Americans would have supported the conclusion that the individual mandate was unconstitutional.

Yet there was a real longer-term danger to the Court: it risked staining itself with the appearance of partisanship. This risk was especially acute given some other recent decisions (most prominently, Bush v. Gore and Citizens United) and some others headed the Court's way (such as those involving the constitutionality of affirmative action and the Voting Rights Act). A steady string of 5-4 decisions on a range of controversial issues, cleaving perfectly along partisan lines, would present a real threat to the Court's diffuse support--support that depends on the public's faith that the Court stands above partisan politics, that it renders its decisions based on legal and constitutional principles.

The Chief Justice’s opinion today can rightly claim the mantle of bipartisanship and judicial modesty, and in this highest of high-profile cases. "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions." The Chief's paens to the limited role of the judiciary in our constitutional framework, stated eloquently during his Senate confirmation hearings, suddenly ring much more true.

Further, the opinion's power to lift the Court above the polarized, partisan fray is apt to prove enormously valuable to its long-term institutional standing. Today's decision largely immunizes the Court, at least for some time, from Democratic attacks that the five Republican appointees are "conservative judicial activists," partisan hacks in judicial robes. If the Court declares that all governmental affirmative action programs violate the Equal Protection Clause next spring in Fisher, for instance, liberals will have a much harder time making the predictable accusations of partisanship stick. Today's Case of the Century will stand as a salient counter-example.

At the same time, the Chief Justice established some important, conservative doctrinal beachheads. Specifically, he reaffirmed or established (depending on your perspective) some potentially important limits on Congress’s powers under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause. In fine, Congress cannot use the Commerce Clause to regulate commerce in a manner that compels people into commerce; it can only regulate existing commerce. Further, such regulation, even if "necessary," can never be "proper," no matter its importance to a broader regulatory scheme. And the General Welfare Clause does not permit Congress to use the states' dependence on an existing conditional spending program as a means to forcing them to accept significant, qualitative changes to that program; rather, states must be given the choice to accept or deny the funds associated only with the program's modifications--at least when the program is huge like Medicaid.  

We can debate the significance of these limits. And whatever we think today, what will really matter is how future Court majorities interpret today’s opinion. But regardless, the Chief Justice stated clearly that the Obama administration's principal defense of the Act--as a regulation of interstate commerce--amounted to a regulatory overreach. He embraced the essence of the conservative constitutional argument--that Congress cannot uses its commerce power to regulate "inactivity." And in wrapping the Court in bipartisanship, he has made it much more difficult for liberals to attack the Court's conservative decisions going forward.

Further, it is important to keep in mind an important difference in these controversies. Today's decision merely held that the ACA is permissible; a Republican Congress and President could repeal the Act in toto in January. By contrast, decisions like Citizens United--or potential decisions declaring affirmative action or Section 5 of the Voting Rights Act unconstitutional--could only be undone via constitutional amendment (or a subsequent overruling).

Liberals should be extremely excited by today's decision. The bottom line is that the most significant piece of social welfare legislation since the 1960s survived the exacting review of a conservative Supreme Court. As a matter of policy, in an age of growing economic inequality, the Court has validated the biggest effort at redistribution since the end of the Great Society. But liberals should not forget that, in the long run, it was the views of the Federalists--and Chief Justice Marshall in particular--that ultimately shaped the Nation. By cultivating the Supreme Court's institutional legitimacy, Marshall was able to pursue his nationalist visions, even while conceding momentary defeats to the Jeffersonians. Marshall saw that, as the Court's prestige grew, so, too, did the influence of the Chief Justice over the growing Nation.

Today's real winner was the Court--and by extension the Chief Justice. It was a stroke of judicial genius. A Marbury for our time.

Vindication for the SG

Not only did the Government win, but it won on an argument (that the mandate falls within Congress's taxing power) that many commentators on the left were urging the Government to drop, given that every single lower court judge (other than arguably Judge Wynn of the Fourth Circuit) had rejected it. General Verrilli deserves some apologies, I think.

Moreover, folks like Paul Clement, Randy Barnett, and Michael Carvin deserve a great deal of credit for getting the Court essentially to adopt their commerce power argument. Almost no one thought that possible--even if they believed the argument was right as a matter of constitutional law--27 months ago.

Some reaction

Lawrence Solum has some initial, preliminary thoughts here.

The critical aspect of the holding

This captures the essence of the Court's opinion upholding the minimum coverage provision, taken verbatim from the Court's syllabus:

The Affordable Care Act describes the “[s]hared responsibilitypayment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287, 294. Pp. 33–35. 
Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy healthinsurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40. 
Even if the mandate may reasonably be characterized as atax, it must still comply with the Direct Tax Clause, which provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4. A tax on going without health insurance is not like acapitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion toits population. Pp. 40–41.


You can access the Court's opinion in National Federation of Independent Business v. Sebelius here.

The dissent

Kennedy appears to be writing the principal dissent. He is reading from it now. And apparently he (and Scalia, Thomas, and Alito) would hold the ACA invalid in toto.

Commerce power

The Court apparently also held that the mandate exceeds Congress's authority to regulate interstate commerce. Not sure why they needed to reach that question, but it certainly hands the other side a significant doctrinal victory. Though, as we have discussed before, Congress was quite unlikely to impose purchasing mandates in the future regardless.

Still waiting for the opinion

I will post one here as soon as I get the PDF.

By the way, did I say wow? Wow. I'm still shaking.

More on Medicaid

The Court apparently held that the expansion is constitutional, but it would be unconstitutional for the Secretary to penalize a state by withholding pre-existing funding (i.e., pre-ACA funding) for the failure to adhere to the new conditions imposed by the ACA.

Holding in a sentence

"Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it."


Wow. Just wow. Did not see that coming.

UPDATE: It appears to be 5-4, written by Roberts, with the four Democratic appointees joining.

UPDATE 2: They did something to limit the Medicaid provision, but it is not invalidated.

UPDATE 3: This from Tom Goldstein: "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read."

UPDATE 4: Let me just say that the Chief deserves a fantastic amount of praise for staying true to his words of "judicial modesty" that he articulated at his confirmation hearings. Many of you may disagree with the result, which I completely understand. But this was a decidedly principled move by the Chief. And a courageous one, given all the pressure of expectations that he must have felt (at least internally) from the groups responsible for placing him on the Court. I know this is a very bitter disappointment to many who follow the Court and constitutional law, but I think it will work out well for the Court as an institution in the long run.