Monday, December 6, 2010

Any day now in Richmond . . .

In the very near future, Judge Hudson of the United States District Court for the Eastern District of Virginia will issue his decision in Virginia v. Sebelius. The Commonwealth of Virginia and the United States have both filed motions for summary judgment, and the only real legal question is whether the ACA’s minimum coverage requirement (§1501(b)) falls within Congress’s enumerated powers. Given Judge Hudson’s ruling in August, which denied the United States’s motion to dismiss Virginia’s complaint—as well as the nature of the judge’s questioning at oral argument in October—it seems likely that he will hold that §1501(b) is unconstitutional. There is no certainty on this point, of course, but it seems more likely than not.

The critical question will then be, What next? What practical and legal impact will his ruling hold? Thinking about that question, I have sketched out an initial, rough list of items to keep our eyes on—in the opinion itself and in the days soon thereafter.

1. What does Judge Hudson say about the remedy?

a. First, does he decide to put off the question, for separate briefing and argument? Or does he order a remedy immediately?

b. Second, if he does order a remedy, will he find §1501(b) severable from most of the rest of the ACA? The United States has already conceded that the individual mandate is not severable from §1201, the “must carry” and “community rating” provisions that go into effect in 2014. But would other portions of the Act also be deemed unconstitutional? Would the court entertain Virginia’s boldest claim: that the entirety of the Act must go down?

2. How does Judge Hudson’s decision affect other district courts considering the same question? Is it merely one voice of many, or will it become a “leading” authority (for whatever reason) in influencing other outcomes, potentially generating a sort of momentum against the constitutionality of the Act?

3. How does his decision affect public discourse about the ACA and its constitutionality? Does it serve to give greater legitimacy and persuasiveness to such arguments? Or does it blend into all the other noise about the Act, one of many district court decisions that will have to go to the Court of Appeals, and then ultimately the Supreme Court, at some point in the future, with no real significance in itself?

Whatever Judge Hudson decides, the losing party will undoubtedly appeal the judgment to the United States Court of Appeals for the Fourth Circuit. This could happen relatively quickly, if no other proceedings need take place in the District Court. Or it could take some time, if there needs to be a separate remedial proceeding. And once we get to the Fourth Circuit, and the Fourth Circuit decides the matter (which should take from six months to a year), there still will be the opportunity for en banc review before a petition for certiorari would be filed at the Supreme Court. So we are still quite a long way from One First Street, N.E.

But Judge Hudson’s decision will likely be the most significant judicial decision on the ACA’s constitutionality to date. Exactly how significant remains unclear.