There are now five constitutional challenges to the ACA scheduled for oral argument in the United States Courts of Appeals: Virginia v. Sebelius and Liberty Unitversity v. Geithner (Fourth Circuit, May 10); Thomas More Law Center v. Obama (Sixth Circuit, June 1); Florida v. HHS (Eleventh Circuit, June 8); and Seven-Sky v. Holder (D.C. Circuit, sometime in September). All five present the principal question in this litigation: whether the minimum essential coverage provision is within Congress's enumerated powers.
Meanwhile, all activity in the sundry other constitutional challenges to the ACA has virtually ground to a halt. For instance, briefing in Baldwin v. Sebelius has been complete for more than two months, and a petition for initial en banc hearing has been pending for just as long. But the Ninth Circuit has done nothing. Likewise, the District Court (N.D. Ohio) in U.S. Citizens Association v. Sebelius has essentially held that it plans to take no further action until the matter is resolved by higher courts.
All of this makes a fair amount of sense. It seems unlikely that any of these other cases will be the one that goes up to the Supreme Court. So there seems little use in laboring away to no particular end, when the matter will ultimately be resolved by a different court in a different case.
Of course, many of these challenges raise other constitutional issues--issues that the Supreme Court is unlikely to address (unless it holds that the minimum coverage provision is unconstitutional and unseverable from the rest of the ACA). Thus, the lower courts will likely have to confront these other questions at some point in the future.
But for now, most of the other action seems to be on hold, while these five cases make their way to the Supreme Court--most likely to be decided in June 2012.
