Monday, March 14, 2011

Some points from the SG's BIO

Here is a list of the more significant submissions advanced by the United States in its brief in opposition to certiorari:

* The issue of whether the minimum coverage requirement exceeds Congress's enumerated powers is already under expedited review in three courts of appeals (the CA4, CA6, and CA11) and may soon be so in a fourth (the CADC). Given that Virginia has not sought expedited consideration of this petition, even if the Court were to grant this petition, it would not hear the case until next Term. But given these other appeals, that is when the matter is likely to arrive at the Court regardless. In other words, granting this petition would not significantly accelerate the Court's review of the matter.

* On the other side of the ledger, it would deprive the Court of the benefit of the consideration of the issue by several courts of appeals. In other words, there is a substantial cost, but no significant upside.

* Any of the resources Virginia might have to devote to implementing the ACA in the interim are not at all attributable to the minimum coverage provision, but to other aspects of the Act that it has not challenged.

* Regardless, the costs alleged by Virginia, seen in context, are not substantial.

* This case "does not resemble the handful of cases in which this Court has taken the extraordinary step of
granting certiorari before judgment." The cases in which the Court has granted such review have generally "presented risks of extraordinary disruption and irreparable harm." This is not like Mistretta, where thousands of federal defendants potentially would have required resentencing, or United Mine Workers, where an ongoing strike threatened the jobs of more than 5 million people.

* Moreover, even if this were a case that met the criteria of Rule 11, there is a serious standing problem: "This Court’s precedents, however, foreclose a suit by a State against the federal government 'to protect her citizens from the operation of federal statutes.'"  

* The Virginia Health Care Freedom Act cannot create standing for the Commonwealth where it would not otherwise exist. Otherwise, states could pass similar "declaratory" laws and thus manufacture Article III standing to challenge the application of federal statutes within their borders.

* Cases like Massachusetts v. EPA are distinguishable, as there existed an injury to the state's own, separate interests as an entity (such as the erosion of its own land). Here, the only purpose of Virginia's law is to immunize its citizens from federal regulation.