Thursday, September 29, 2011

Response briefs and timing

Some real nitty-gritty on what happens next, and how it affects the timing:

* First, the due dates for certiorari response briefs (or perhaps in opposition) are different, for whatever reason. The United States's response to the NFIB et al. petition (No. 11-393) is due October 28. The responses of all the plaintiffs to the United States's petition (No. 11-398) are also due on October 28. But the United States's response to the state governments' petition (No. 11-400) is not due until October 31.

* Second, the reason this may be so is that the Solicitor General may well (indeed, is likely to) argue that certioari should be denied with respect to questions 1 and 2 presented in the states' petition. Again, those questions are:

1. Does Congress exceed its enumerated powers and violate basic principles of federalism when  it coerces States into accepting onerous conditions that  it  could not impose  directly by threatening to withhold all  federal  funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending  power that this Court  recognized in  South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply? 
2. May Congress treat States no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage, as suggested by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or has Garcia's approach been overtaken by subsequent cases in which this Court has explicitly recognized judicially enforceable limits on Congress‘s power to interfere with state sovereignty? 
   The United States did not address these questions yesterday in its petition for certiorari. Moreover, there is no split of lower court authority on either of them. Thus, the SG has a decent argument that neither of these questions, at least under the Court's traditional criteria, are certworthy.

* Finally, as the United States is likely to oppose cert at least in part, it makes sense for the Court to wait for all the response briefs to be filed. That means we are looking at, roughly speaking, an order from the Court in late November granting review. And the argument would be in either March or April, with a decision by late June.