Tuesday, June 7, 2011

Tomorrow's lawyers, in the news for other reasons

Tomorrow in Atlanta, Acting Solicitor General Neal Katyal and former Solicitor General Paul Clement will square off before Chief Judge Joel Fredrick Dubina, Judge Frank M. Hull, and Judge Stanley Marcus. At issue are (a) the constitutionality of the minimum coverage provision, (b) the constitutionality of the ACA's Medicaid amendments, in particular the provision requiring states to extend coverage eligibility to all legal residents under 65 at or below 138 percent of the federal poverty level, and (c) whether, if either of these provisions is unconstitutional, it can be severed from the remainder of the Act. A third lawyer, Michael Carvin, will argue on behalf of the NFIB and the two individual plaintiffs.

This is the first of the three appeals courts to have confronted the ACA that, at least as of now, has not asked for supplemental briefing on any jurisdictional issues. Moreover, this may be the first time in American history--I am just guessing here, but it seems like a reasonable guess--that the present Solicitor General and a former Solicitor General will face one another in a court of appeals. (It happens at the Supreme Court with relative frequency.) 

There are two items from yesterday's news related to Katyal and Clement, though they have nothing to do with Florida v. HHS. First, the Senate yesterday confirmed Donald Verrilli to be the next Solicitor General. I have not seen any indication of precisely when Verrilli will be sworn in--perhaps it has already happened. (Not that it matters to Katyal's authority to argue Florida v. HHS; he presumably just slips back into the post he served under Solicitor General Elena Kagan, as the Office's Principal Deputy.) But this is likely the final ACA case that Katyal will argue, and Verrilli will need to get up to speed for the next big argument--before the D.C. Circuit September 23 in Seven-Sky v. Holder. (The Third Circuit and Ninth Circuit cases do not seem too important, as the lower courts dismissed the cases purely on justiciability grounds.)

The second item concerns Paul Clement. It was revealed yesterday that he has been hired by the State of Arizona to defend its controversial immigration law, S.B. 1070, at the Supreme Court. This completes a trifecta of sorts for Clement in recent months in terms of brutally ideological and partisan litigation matters: (1) he represents the states in Florida v. HHS; (2) he represents the House of Representatives in defending the constitutionality of the Defense of Marriage Act; and (3) he represents Arizona in the defense of S.B. 1070. Clement is a terrific lawyer. And he is, by all accounts, an incredibly thoughtful and principled person--much less ideologically driven than most in high-powered D.C. circles. So it comes as a bit of a surprise that he is now, whether intentional or not, the face of the G.O.P. on perhaps the three most ideologically divisive issues currently under review in the federal courts. 

I doubt any of this really matters to the outcome of Florida v. HHS. It is hard to believe that the ACA litigation could become any more saturated with politics than it is now. But I have to wonder, at some level, whether Clement's alignment with all three of these issues--simultaneously--might subtly undermine his credibility with the justices. Again, I doubt it. But it seems possible in a way that it did not three months ago.