Three noteworthy items have occurred in the past week in the lead up to oral argument that warrant some discussion:
* First, last Tuesday, the Ninth Circuit issued this order, stating as follows (as is relevant):
"Oral argument in this matter, scheduled for July 13, 2011, at Pasadena, California, shall be limited to 10 minutes per side. We advise the parties to focus their argument on the issues of jurisdiction and standing. Specifically, the parties should be prepared to discuss the effect, if any, of WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) and whether it is appropriate for this court to exercise jurisdiction under 28 U.S.C. § 1292(a)(1); and circuit precedent on standing in pre-enforcement challenges. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)."This indicates that the court is only interested in the jurisdictional issue (which was the only issue reached by the district court) and has no interest in getting to the merits, even if the court concludes that the plaintiffs have standing. Indeed, the Ninth Circuit seems to be treating this as an extremely narrow, fact-specific, subject matter jurisdiction appeal--and nothing more. (Oral argument was originally scheduled for 20 minutes per side.)
* On Wednesday, and partly in response to the Ninth Circuit's order, the plaintiff-appellants filed this letter with the court, in which they make the following contentions: (1) the Sixth Circuit's decision in Thomas More Law Center, which found that the plaintiffs there had standing to challenge the minimum coverage provision, supports their claim to standing here; (2) the court should not just restore argument to 20 minutes per side, but expand it to 30 minutes; and (3) given that the plaintiffs have sought a preliminary injunction, the court should reach the merits of whether the minimum coverage provision exceeds Congress's enumerated powers.
* On Thursday, the United States filed this letter in response to the plaintiff-appellants' letter. In it, the DOJ argues that (1) Thomas More Law Center does not support the plaintiffs' standing here, because the record as it stands (given the plaintiffs' declarations) shows no current or imminent injury from the mandate, and (2) there is no reason at all for the court to reach the merits of the mandate's constitutionality on this appeal, even if the plaintiffs have standing.
At the end of the day, this case looks like it will have little or no role to play in the larger drama. For even if the plaintiff-appellants are successful on this appeal (and it does not appear that they will be), the Ninth Circuit would almost certainly then just remand the case back to the district court to consider the merits in the first instance. And given the pace and workload of the Ninth Circuit, that remand might not occur for six months, regardless, at which point one of the other cases will be before the Supreme Court on the merits.