aca litigation blog

Court-appointed amicus brief

2012-02-22T16:03:00.002-08:00

You can access the brief of Court-appointed amicus curiae H. Bartow Farr, III on the severability issue in Nos. 11-393 and 11-400 (defending the Eleventh Circuit's judgment that the minimum coverage provision is completely severable) here.

What's left in the briefing

2012-02-22T14:46:00.002-08:00

Most of the filings are now in -- by my rough count, approximately 140 separate briefs on the four distinct issues. Here is what remains on the schedule:

* Monday, February 27: reply briefs of the Solicitor General and the respondents (challengers) are due on the Anti-Injunction Act issue (No. 11-398).

* Wednesday, March 7: the Solicitor General's reply brief is due on the minimum coverage provision issue (No. 11-398).

* Monday, March 12: the states' reply brief is due on the Medicaid issue (No. 11-400).

* Monday, March 12: also due that day is the reply brief of the Court-appointed amicus curiae on the Anti-Injunction Act issue (No. 11-398).

* Tuesday, March 13: reply briefs of the Solicitor General and the petitioners (challengers) are due on the severability issue (Nos. 11-393 and 11-400).

This should take us close to a total of 150 briefs, well in excess of my original over/under number of 130. This litigation continues to impress!

Argument time allocated

2012-02-21T10:08:00.003-08:00

The Court's order list today (in addition to including two per curiam reversals) allocated the time at oral argument among the various parties on the different issues. Here is the full text of the relevant order:

11-393 NAT. FED'N INDEP. BUSINESS V. SEBELIUS, SEC. OF H&HS, ET AL.
11-398 DEPT. OF H&HS, ET AL. V. FLORIDA, ET AL.
11-400 FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL.

Upon consideration of the motions pertaining to the allocation of oral argument time, the following allocation of oral argument time is adopted.

On the Anti-Injunction Act issue (No. 11-398), the Court-appointed amicus curiae is allotted 40 minutes, the Solicitor General is allotted 30 minutes, and the respondents are allotted 20 minutes.

On the Minimum Coverage Provision issue (No. 11-398), the Solicitor General is allotted 60 minutes, respondents Florida, et al. are allotted 30 minutes, and respondents National Federation of Independent Business, et al. are allotted 30 minutes.

On the Severability issue (Nos. 11-393 and 11-400), the petitioners are allotted 30 minutes, the Solicitor General is allotted 30 minutes, and the Court-appointed amicus curiae is allotted 30 minutes.

On the Medicaid issue (No. 11-400), the petitioners are allotted 30 minutes, and the Solicitor General is allotted 30 minutes.

If I am reading this correctly, the Court (1) agreed with all the parties to expand argument on the AIA by 30 minutes, and (2) sided with the SG (and against the respondents) on how that additional 30 minutes would be allocated, giving 30 minutes to the SG and only 20 minutes in total to both the state and private respondents.

Amicus briefs supporting the United States on the Medicaid issue

2012-02-17T13:20:00.000-08:00

Video of the National Press Club event

2012-02-17T09:50:00.000-08:00

Thanks to the pointer from Howard Bashman of How Appealing, you can find video of yesterday's discussion (featuring Tom Goldstein, Lyle Denniston, Paul Clement, Michael Carvin, Neal Katyal, and Akhil Amar) here via C-SPAN.

More amicus briefs supporting respondents on the minimum coverage provision

2012-02-16T11:51:00.000-08:00

More briefs due tomorrow

2012-02-16T08:56:00.000-08:00

For those who do not have the briefing schedule committed to memory, two groups of briefs are due at the Court tomorrow:

1. The Court-appointed amicus curiae brief addressing the question whether the minimum coverage provision is severable from the remainder of the ACA (and all amicus briefs supporting the Court-appointed amicus).

2. All amicus briefs in support of the United States on the Medicaid question.

No end to the fun!

National Press Club event

2012-02-16T07:50:00.000-08:00

A fantastic event is occurring this morning at the National Press Club in Washington. Paul Clement, Michael Carvin, Neal Katyal, and Akhil Amar are discussing the arguments on the minimum coverage provision (at least principally). Lyle Denniston and Tom Goldstein are also on the billing. SCOTUSblog is liveblogging the event, which you can follow (or review after the fact) here.

The ACA library, updated

2012-02-15T15:06:00.000-08:00

Given the brief lull in the briefing, I had a chance this afternoon to update the list of academic articles addressing the constitutionality of the ACA. You can find it to the right, through the link entitled Bibliography. It now includes more than sixty articles, from Jonathan Adler's Cooperation, Commandeering, or Crowding Out? Federal Intervention and State Choices in Health Care Policy, to Rebecca Zietlow's Democratic Constitutionalism and the Affordable Care Act. So once you have finished those one hundred briefs or so that have been filed thus far, here is another 3,000 pages of reading to keep you busy. Enjoy!

Over 60

2012-02-15T08:23:00.001-08:00

I have thus far tracked down 30 34 amicus curiae briefs filed in support of respondents on the minimum coverage provision issue. By my count, 31 amicus briefs were filed on the issue in support of the United States, and one was filed in support of neither party. So my total now stands at 62 66 amicus briefs on this issue alone . . . and I know there are still several more out there that I have yet to find. If we combine all the amicus filed on the four issues (arguably a fair move, given that only one judgment below is under review), I think this case will set the record for most amicus filings at the Court. All told, we are likely to see in the neighborhood of 110 amicus briefs. (Hard to argue that that is not a substantial effect on interstate commerce.)

Amicus briefs due today

2012-02-13T09:50:00.000-08:00

Again, two groups of amicus curiae briefs are due today: (1) those supporting the respondents on the minimum coverage provision issue, and (2) those supporting the parties (who take largely, though not entirely, the same position) on the Anti-Injunction Act issue. I will update this post throughout the day and this evening as I receive additional briefs.

UPDATE (Tuesday morning): More amicus briefs continue to trickle in, so I am adding them to this post (and to the HHS v. Florida (No. 11-398) case documents page on the right) as I find them.

UPDATE 2 (Tuesday evening): I am still coming across additional amicus briefs that were filed yesterday. So I will keep this thread open through noon tomorrow. If you know of any briefs that I am missing, feel free to let me know: bjoondeph@scu.edu. Thanks.

Amicus curiae briefs supporting respondents on the minimum coverage provision:

* Brief Amicus Curiae of Senator Rand Paul Addressing the Minimum Coverage Provision Issue in Support of Respondents, Urging Affirmance

* Brief of Amicus Curiae Landmark Legal Foundation in Support of Respondents on the Individual Mandate (Minimum Coverage)

* Brief of Amicus Curiae Cato Institute Supporting Respondent (Anti-Injunction Act Issue)

* Brief Of Amici Liberty University, Inc., Michele Waddell and Joanne Merrill in Support of the Petitioners and Respondents on the Anti-Injunction Act

* Amicus Curiae Brief of the American Center for Law & Justice in Support of Respondents Regarding the Anti-Injunction Ace Issue and Urging Affirmance in Part, Reversal in Part

* Brief of State Chambers of Commerce and Related Organizations as Amici Curiae in Support of the Respondents on the Anti-Injunction Act

U.S. brief on Medicaid issue

2012-02-13T08:53:00.000-08:00

You can read it here.

Still waiting on the SG's Medicaid brief

2012-02-13T07:58:00.000-08:00

The United States filed its brief on the Medicaid issue in Florida v. HHS (11-400) on Friday, but I have yet to track down a copy. I will post it as soon as I find one. Meanwhile, more amicus curiae briefs in support of respondents on the minimum coverage provision in HHS v. Florida (11-398) are coming in. Those are due today. I will throw up a post shortly with links to those, which I will update as they roll in.

Some early amicus briefs

2012-02-10T13:49:00.000-08:00

Here are three. I will create a separate post with a comprehensive list on Monday.

* Brief Amicus Curiae of Senator Rand Paul Addressing the Minimum Coverage Provision Issue in Support of Respondents, Urging Affirmance

* Brief of Amicus Curiae Landmark Legal Foundation in Support of respondents on the Individual Mandate (Minimum Coverage)

* Brief of Amicus Curiae CATO Institute Supporting Respondent (Anti-Injunction Act Issue)

More briefs being filed as we speak

2012-02-10T13:40:00.000-08:00

Today is the due date for the United States's brief for the respondent in Florida v. HHS (No. 11-400) addressing the Medicaid issue. It should be available shortly; I will post it as soon as possible.

In addition, several of the amici whose briefs are due Monday (those supporting either party in on the Anti-Injunction Act issue, and those supporting respondents on the minimum coverage provision) have filed their briefs early, and those are trickling in. I will put some up in a separate post shortly.

U.S. files brief on the Anti-Injunction Act

2012-02-07T12:42:00.001-08:00

The United States has filed its brief in HHS v. Florida (No. 11-398) addressing the Anti-Injunction Act issue. You can access its brief here.

States file their briefs as well

2012-02-06T13:38:00.000-08:00

The State Respondents have now also filed their briefs in HHS v. Florida (No. 11-398).

* You can access their brief on the minimum coverage provision here.

* You can access their brief on the Anti-Injunction Act here.

Private respondents file their briefs in HHS v. Florida (No. 11-398)

2012-02-06T11:46:00.001-08:00

The private respondents--the National Federation of Independent Businesses, Kaj Ahlburg, Mary Brown, and the recently added Dana Grimes and David Klemencic--have filed their two brief (due today) in HHS v. Florida (No. 11-398). One addresses the constitutionality of the minimum coverage provision, and the other addresses the applicability of the Anti-Injunction Act.

You can access their brief on the constitutionality of the individual mandate here.

And you can access their brief on the AIA issue here.

As a reminder, three other briefs are due today: (1) the State Respondents' brief on the minimum coverage provision, (2) the State Respondents' brief on the Anti-Injunction Act, and (3) the United States's brief on the Anti-Injunction Act.

UPDATE 1:30 PST: Now just waiting on the United States's brief.

The next two weeks

2012-01-30T10:27:00.000-08:00

I am continuing to update the post below (and the case pages to the right) as I come across additional amicus briefs. We are now over sixty briefs that have been filed on the merits with respect to the four separate issues, which means we are headed for well over one hundred in total. (I would put the over-under at about 120.)

There are no briefs due this week, but many will be field in the next fourteen days. Here are the due dates to keep in mind:

* Monday, February 6: the private and state respondents' briefs are due in HHS v. Florida (No. 11-398), addressing the constitutionality of the minimum coverage provision.

* Monday, February 6: also due that day are all the parties' briefs in HHS v. Florida (No. 11-398), addressing whether the Anti-Injunction Act precludes the Supreme Court's jurisdiction in this case, and thus requires vacatur of the Eleventh Circuit's decision.

* Friday, February 10: the United States's brief is due in Florida v. HHS (No. 11-400), addressing whether the ACA's Medicaid expansion provisions are constitutional.

* Monday, February 13: amicus curiae briefs supporting the respondents are due in HHS v. Florida (No. 11-398), addressing the constitutionality of the minimum coverage provision. (There may be a few.)

* Monday, February 13: also due that day are amicus curiae briefs supporting the parties (either side) in HHS v. Florida (No. 11-398), arguing that the Anti-Injunction Act is not a bar to the Court's jurisdiction in this case.

Severability briefs filed today

2012-01-27T13:23:00.000-08:00

An open post aggregating today's briefs on the severability issue (filed in Nos. 11-393 and 11-400) as I find them:

* Brief for the Respondents (Severability)

* Brief for the American Academy of Actuaries as Amicus Curiae Supporting Respondents on the Severability Issue

* Brief for the States of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New Mexico, New York, Oregon, and Vermont, the District of Columbia, and the Governor of Washington as Amici Curiae in Support of Respondents on Severability

* Brief of Amici Curiae AARP, Center for Medicare Advocacy, Inc., Medicare Rights Center, National Committee to Preserve Social Security and Medicare, National Council on Aging, and National Senior Citizens Law Center in Support of Respondents on Severability

* Brief of Amici Curiae of the National Indian Health Board, et al., in Support of Respondent United States on Severability Issue

* Brief for Amici Curiae American Medical Student Association; Doctors for America; National Hispanic Medical Association; National Medical Association; National Physicians Alliance; and Society of General Internal Medicine in Support of the United States on Severability

* Brief for the American Benefits Council as Amicus Curiae in Support of Partial Reversal on Severability

* Brief of the American Public Health Association, American Academy of Pediatrics, American Lung Association, American School Health Association, Association of Schools and Public Health, National Association of County and City Health Officials, National Association of Local Boards of Health, National Health Law Program, Public Health Law Association, Public Health Law Center and Public Health Law and Policy as Amici Curiae in Support of Respondents Regarding Severability

United States files its brief on severability

2012-01-27T13:11:00.000-08:00

The Office of the Solicitor General has filed its brief on the severability issue, which you can access here.

As it has in the lower courts, the United States argues that, if the Court declares the minimum coverage provision unconstitutional, the rest of the ACA should remain in force except only for the guaranteed-issue and community-rating provisions that go into effect in 2014. The United States also argues that the challengers lack standing to seek the invalidation of most provisions of the ACA, thus rendering most questions concerning the continuing validity of the ACA (were the individual mandate unconstitutional) non-justiciable.

UPDATE: It is not just constitutional standing principles that the United States believes prevent the Court from considering the invalidity of most other parts of the ACA. Rather, it is virtually every constitutional or prudential doctrine related to the breadth of judicial review. Check this out (from pp. 15-16): "Whether viewed as a matter of Article III and prudential standing, a limitation on the scope of equitable relief, application of the principle that facial challenges are disfavored, or simply a matter of judicial restraint, the Court should not consider the validity of provisions that are not directed to petitioners but instead affect numerous parties not before the Court."

Severability briefs due today

2012-01-27T10:08:00.000-08:00

The brief of the United States on the issue of severability (that is, whether the minimum coverage provision, if unconstitutional, can be severed from the remainder of the ACA) is due today, along with all amicus curiae briefs supporting the United States on this question. I will post the filed briefs here (and on the relevant case pages, located to the right) as soon as I track down electronic copies.

Seven-Sky distributed for February 17 conference

2012-01-20T12:12:00.000-08:00

The petition for a writ of certiorari filed by the plaintiffs in Seven-Sky v. Holder (11-679)--the case in which the D.C. Circuit upheld the constitutionality of the minimum coverage provision back in November--has been distributed for the justices' conference of February 17. Almost certainly, the Court will take no action on the petition, and instead simply re-list and hold it pending its decision in HHS v. Florida. (This is what the Court has already done with Liberty University v. Geithner, Virginia v. Sebelius, and Thomas More Law Center v. Obama.)

Amicus briefs supporting state petitioners on the Medicaid issue

2012-01-17T15:49:00.000-08:00

I will update this post as I find additional briefs. (And if you have one and would be so kind, I would be obliged if you e-mailed me a copy at bjoondeph@scu.edu. Thanks.)

* Brief of Amici Curiae Center for Constitutional Jurisprudence, Pacific Legal Foundation, CATO Institute, Congressman Denny Rehberg and Dr. Jeff Colyer in Support of Petitioners (Medicaid Spending/Coercion Issue)

* Brief of Association of American Physicians and Surgeons and Individual Physicians as Amici Curiae in Support of Petitioners (Medicaid Issue)

* Brief for Amici Curiae Economists in Support of State Petitioners Regarding Medicaid Expansion

* Brief of James F. Blumstein, as Amicus Curiae in Support of Petitioners (Medicaid Issue)

* Brief of Amici Curiae Texas Public Policy Foundation and 36 Texas State Legislators Supporting Petitioners on Medicaid

* Brief of the Independence Institute as Amicus Curiae in Support of Petitioners (Medicaid Mandate)

* Brief of Amici Curiae Indiana State Legislators, the James Madison Institute, and Christopher Conover in Support of Petitioners (Medicaid Issue)

District Court stays proceedings in Coons v. Geithner

2012-01-17T10:57:00.000-08:00

You might recall that Coons v. Geithner (No. 2:10-cv-1714) is the case presently being litigated in the United States District Court for the District of Arizona. It is noteworthy, to some degree, as the only case in which the constitutionality of the Independent Payment Advisory Board (the body created by the ACA to review Medicare reimbursement rates) is being challenged. The briefing on summary judgment motions is now complete.

This morning, the district court issued an order in the case. Here it is, as it appears on PACER:

ORDER granting Motion to Stay pending the Supreme Court's decision in Florida. That Defendants file a status report on or before April 16, 2012 and every 90 days thereafter until the stay has been lifted. Signed by Judge G Murray Snow on 1/17/12.(DMT) (Entered: 01/17/2012)

Thus, as with several of the cases in the lower courts, there will be no further action until the Supreme Court issues its decision.

Amicus briefs supporting the states on Medicaid issue due today

2012-01-17T10:49:00.000-08:00

As the states' brief as petitioner was due last Tuesday, today is the deadline for amicus curiae briefs supporting the states' position in Florida v. HHS (No. 11-400)--namely, that the ACA's Medicaid provisions exceed Congress's spending power (because they amount to coercive spending conditions, and thus constitute an unlawful "commandeering"). I teach both of my classes today, so it may not be until tomorrow that I have the time to get the briefs up on the site. I will do my best.

Amicus briefs supporting the constitutionality of the minimum coverage provision

2012-01-13T11:28:00.000-08:00

Amicus supporting the constitutionality of the individual mandate due today

2012-01-13T09:56:00.000-08:00

Today is the due date for amicus curiae briefs supporting the United States in HHS v. Florida (No. 11-398), arguing that the ACA's minimum essential coverage provision is within Congress's enumerated powers. Based on what we saw in the circuit courts (roughly 15 amicus briefs supporting the government in each case), I am anticipating the filing of 30 to 35 briefs today, but that is just a guess.

Also due today (I think) would be any amicus briefs supporting the position of the Court-appointed amicus on the Anti-Injunction Act question.

(By the way, if anyone out there is filing an amicus brief, and it is not too much trouble, I would be much obliged if you e-mailed me a copy at bjoondeph@scu.edu. Thanks!)

More amicus briefs on severability

2012-01-12T14:19:00.000-08:00

All told, thirteen amicus curiae briefs have been filed thus far on the issue of severability (either in support of the petitioners or in support of neither party). In addition to the six I have already posted, there are these seven:

* American Civil Rights Union Amicus Curiae Brief in Support of Petitioners on Severability

* Brief of Amici Curiae Competitive Enterprise Institute, Thomas P. Miller, Joseph R. Antos, Christopher J. Conover, Earl L. Grinols, Michael A. Morrisey, Thomas J. Philipson, Scott E. Harrington, James C. Capretta, Robert Kaestner, and James W. Henderson in Support of Petitioners (Severability Issue)

* Brief for Amici Curiae Economists in Support of Petitioners Regarding Severability

* Brief of Justice and Freedom Fund as Amici Curiae in Support of Petitioners (Severability)

* Brief of Amicus Curiae National Restaurant Association in Support of Petitioners (Severability)

* Brief Amicus Curiae of Western Center of Journalism Supporting Petitioners on Severability

* Brief for the American Hospital Association et al. as Amici Curiae in Support of Neither Party on Severability

The amicus briefs supporting the United States on this issue are due the same day as the Government's brief, which is January 27.

An update on Seven-Sky

2012-01-12T12:03:00.000-08:00

While the briefing unfolds at the Supreme Court in NFIB v. Sebelius, HHS v. Florida, and Florida v. HHS, the other cases continue to percolate. Over the next two weeks, I will try to provide updates on all of them. I will start with the most prominent one, that decided by the D.C. Circuit on November 8, Seven-Sky v. Holder.

On November 30, the plaintiffs filed a petition for a writ of certiorari, which you can access here. The petition raises two questions:

1. Whether the D.C. Circuit, in conflict with the Eleventh Circuit, erred in concluding that the Commerce and Necessary and Proper Clauses grant Congress virtually unlimited power to compel American citizens to purchase products from a private company, such as a health insurance policy, for the remainder of their lives or be penalized annually.

2. Whether the D.C. Circuit, in conflict with Sherbert v. Verner, 374 U.S. 398 (1963), erred in concluding that Petitioners Seven-Sky and Lee have not stated a plausible claim that their religious exercise is substantially burdened when they allege that the individual mandate compels them to either violate their religious beliefs by participating in a health insurance system or pay annual penalties for adhering to their religious beliefs.

Last week, the United States filed its response, which you can access here. In essence, the government argues that (a) question 1 is raised in the Florida cases, and thus this petition should be held for that case's resolution, and (2) the second question presents no circuit split, and is factbound (specific to these specific plaintiffs' religious beliefs) regardless, and thus should be denied.

On Tuesday of this week, the plaintiffs filed their cert reply brief, which you can access here.

Most likely, the Court will simply hold this petition Until June. Once it hands down its decision in the Florida cases, the justices will either (1) grant this petition, vacate the decision, and remand it to the lower courts; (2) deny the petition outright; or (3) deny on question 1 but grant on question 2, if they find it independently certworthy.

States file brief on Medicaid issue

2012-01-10T21:24:00.001-08:00

The state petitioners in Florida v. HHS (No. 11-400) have filed their brief on the Medicaid question. You can access that brief here.

This week in ACA filings at the Supreme Court

2012-01-09T10:39:00.000-08:00

Here is a rough sketch of the briefs that are scheduled to be filed at the Supreme Court this week (as the justices contemplate the EPA's enforcement powers and the constitutionality of Section 5 of the Voting Rights Act and the FCC's regulation of fleeting expletives):

* Tomorrow (Tuesday), the states will file their brief on the Medicaid issue in Florida v. HHS (No. 11-400).

* On Friday, all amicus curiae briefs supporting the United States in HHS v. Florida (No. 11-398)--arguing that the minimum coverage provision is within Congress's enumerated powers--are due. (This should be in the neighborhood of 30 briefs, I'm guessing.)

* Friday is also the due date for any amicus briefs in support of the Court-appointed amicus curiae in HHS v. Florida (No. 11-398) on the Anti-Injunction Act issue.

Two more amicus briefs supporting reversal on severability

2012-01-09T10:13:00.000-08:00

Two more amicus curiae briefs urging reversal on the severability issue have been filed at the Court, in Nos. 11-393 and 11-400:

* Brief of the Chamber of Commerce of the United States of America as Amicus Curiae in Support of Reversal as to the Severability Issue

* Brief of the Family Research Council and 27 Members of the U.S. House of Representatives as Amici Curiae in Support of Petitioners and Reversal on the Issue of Severability Issue

Per the Court's briefing order, the amicus briefs addressing severability were (and are) due the same date as the parties' briefs. Amicus briefs on the other issues follow the normal rule, which means they are due seven days following the due date for the parties.

Two more amicus briefs

2012-01-08T08:53:00.000-08:00

Two more amicus curiae briefs have been filed (in Nos. 11-393 and 11-400) addressing the question of severabilty. They are:

* Brief of America's Health Insurance Plans and the Blue Cross Blue Shield Association as Amici Curiae in support of Reversal of the Court of Appeals' Severability Judgment.

* Brief of Amici Curiae Texas Public Policy Foundation and CATO Institute Supporting Petitioners on Severability.

Coverage of the topside briefs

2012-01-07T15:10:00.000-08:00

Lots of discussion about the four briefs filed yesterday. Here is a brief survey:

* As usual, the place to start is Lyle Denniston's coverage for SCOTUSblog. He offers his typical, thorough analysis of the three briefs filed by the parties here, and of the brief filed by amicus Robert Long here.

* In Politico, David Nather has this report on the states' brief, and Jennifer Haberkorn has this story on the government's brief.

* Howard Bashman at How Appealing provides links here, here, and here.

* Margot Sanger-Katz has this report in The National Journal.

* Robert Barnes has this article in the Washington Post.

* CNN has this story.

* Ariane de Vogue of ABC News offers this coverage.

* The Washington Times has this story.

* Greg Stohr of Bloomberg News has this story.

* Orin Kerr has these thoughts at Volokh Conspiracy.

* Timothy Jost offers these thoughts at Health Affairs.

All for now.

Today's filings

2012-01-06T13:55:00.000-08:00

Here are the briefs filed thus far today, in one convenient place:

* The United States's Brief for Petitioners in HHS v. Florida (Minimum Coverage Provision)

* The Brief for State Petitioners on Severability in Florida v. HHS and NFIB v. Sebelius

* The Brief for Private Petitioners on Severability in NFIB v. Sebelius and Florida v. HHS

* Brief for Court-Appointed Amicus Curiae Supporting Vacatur (Anti-Injunction Act)

Enjoy!

UPDATE: I have also run across three amicus briefs that have already been written (if not officially filed at the Court), thanks to some helpful readers:

* Brief of AARP as Amicus Curiae in Support of Petitioners (Minimum Coverage Provision) (No. 11-398)

* Brief of the Members of the United States Senate as Amici Curiae in Support of Petitioners on the Issue of Severability (Nos. 11-393 and 11-400)

* Amici Curiae Brief of the American Center for Law & Justice, 117 Members of the United States Congress, and More Than 103,000 Supporters of the ACLJ in Support of Petitioners and Urging Reversal on the Severability Issue (Nos. 11-393 and 11-400)

UPDATE 2: I have just added the brief filed by the Court-appointed amicus cuiae, Robert A. Long, arguing that the Anti-Injunction Act bars the challengers' suit to enjoin enforcement of the minimum coverage provision.

States file brief on severability

2012-01-06T13:48:00.001-08:00

The State of Florida et al. have filed their brief in NFIB v. Sebelius (No. 11-393) and Florida v. HHS (No. 11-400) on the issue of severability. You can access that brief here.

Private plaintiffs file brief on severability

2012-01-06T13:29:00.000-08:00

The private plaintiffs (the NFIB, Kaj Ahlburg, and Mary Brown) have filed their brief (in Nos. 11-393 and 11-400) on the question of severability. You can access their brief here.

U.S. files brief

2012-01-06T12:39:00.001-08:00

The Office of the Solicitor General has filed the United States's brief for the petitioner in HHS v. Florida (No. 11-398), addressing whether the minimum coverage provision exceeds Congress's enumerated powers. You can access the brief here.

UPDATE: Nothing terribly surprising after an initial skim. I would note the following items, though, as somewhat interesting: (1) the United States puts the integral-to-a-broader-regulatory-scheme argument first in its brief; (2) nonetheless, it devotes considerably more space to the "pure" Commerce Clause defense, that the minimum coverage provision is itself a regulation of economic activity (pp. 33-52); (3) while the overall content of the brief looks very similar to what we have been seeing from the government for the last year or so, this brief seems to do a more careful job of framing this case as being solely about legislative means, rather than ends; and (4) the SG has decidely not abandoned the taxing power argument, devoting a full 11 pages to it.

Four briefs due today

2012-01-06T09:00:00.000-08:00

Four briefs are due to be filed at the Supreme Court by the close of business today. Those are:

* The brief of the United States in HHS v. Florida (No. 11-398) addressing whether the minimum essential coverage provision exceeds Congress's enumerated powers.

* The briefs of the private plaintiffs and the states in NFIB v. Sebelius (No. 11-393) and Florida v. HHS (No. 11-400) addressing whether, if the minimum essential coverage provision is unconstitutional, it is severable from the rest of the Affordable Care Act.

* The brief of amicus curiae Robert A. Long in HHS v. Florida (No. 11-398) addressing whether the anti-Injunction Act bars the suit brought by the challengers seeking to enjoin enforcement of the minimum essential coverage provision.

Lyle Denniston will have coverage over at SCOTUSblog and will have the briefs posted there shortly after they become available. It is believed that the Court itself will also make them available through its own web site. I will put them up here just as soon as I receive copies.

Happy reading, everyone!

Happy new year!

2012-01-03T08:30:00.000-08:00

After (1) trying to compose a semi-competent con law final exam, (2) a flurry of pre-final-exam review sessions and office hours, (3) a week of grading said exams, and (4) taking an undeserved, 17-day vacation through Europe, I am now back at my office for the first time in more than three weeks. Not that anyone is really counting on me for anything, but I apologize for the dearth of posting. I still have half my exams to grade and two classes to prep (which start next week). But I plan to be back here at the blog on a regular basis, this week and through the duration. The topside briefs are due Friday, so there will be plenty to discuss shortly.

A heartfelt happy new year to all ACA litigation aficionados!

Briefing schedule set

2011-12-09T11:59:00.001-08:00

Yesterday, the Supreme Court issued an order setting the briefing schedule on the four questions presented in the three ACA cases (Nos. 11-393, 11-398, and 11-400). Here is the calendar:

1. Minimum essential coverage provision issue:

* The United States's brief as petitioner is due January 6

* The briefs of the respondents (the states and the private plaintiffs) are due February 6

* The United States's reply brief is due March 7

2. Anti-Injunction Act issue:

* The brief of the Court-appointed amicus curiae is due January 6

* The briefs of the United States and the respondents are due February 6

* The reply briefs of the United States and the respondents are due February 27

* The amicus's reply brief is due March 12

3. The severability issues:

* The briefs of the states and private plaintiffs are due January 6

* The United States's brief is due January 27

* The brief of the Court-appointed amicus curiae is due February 17

* The reply briefs of the United States, the states, and the private plaintiffs are due March 13

4. The Medicaid issue:

* The states' brief is due January 10

* The United States's brief is due February 10

* The states' reply brief is due March 12

Per Supreme Court Rule 37.3 (a), all amicus briefs (other than those filed by the Court-appointed amicus) are due seven days following the filing of the brief by the party the amicus is supporting (on the relevant issue). Thus, the first major due date is January 13 -- for all amicus briefs supporting the federal government on the question of the individual mandate's constitutionality. (This is also the due date for all amicus briefs supporting the challengers on the severability question.)

All briefing will thus be complete by March 13. And this means the Court is most likely to schedule oral argument for two out of the following three days: March 26, 27, or 28.

Amici appointed for argument

2011-11-18T11:49:00.001-08:00

The Supreme Court has just issued an order appointing two amici to argue the Anti-Injunction Act and severability points. Here is the text of the order in its entirety:

ORDERS IN PENDING CASES

11-393 ) NAT. FED'N INDEP. BUSINESS V. SEBELIUS, SEC. OF H&HS, ET AL.
11-400 ) FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL.

H. Bartow Farr, III, Esquire, of Washington, D.C., is invited to brief and argue these cases, as amicus curiae, in support of the judgment of the Court of Appeals that the minimum coverage provision of the Patient Protection and Affordable Care Act, 26 U.S.C. §5000A, is severable from the entirety of the remainder of the Act.

11-398 DEPT. OF H&HS, ET AL. V. FLORIDA, ET AL.

Robert A. Long, Esquire, of Washington, D.C., is invited to brief and argue this case, as amicus curiae, in support of the position that the Anti-Injunction Act, 26 U.S.C. §7421(a), bars the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act, 26 U.S.C. §5000A.

You can find the order here.

Here is a biography of Mr. Long from the Covington & Burling web site:

Robert Long is a partner who practices in the areas of appellate litigation, antitrust, and administrative law. He chairs the firm’s Appellate and Supreme Court Litigation Group. Mr. Long has argued 16 cases before the U.S. Supreme Court and has played a substantial role in the briefing or oral argument of more than 100 cases in federal and state appellate courts. He was a law clerk to Justice Lewis F. Powell, Jr., of the U.S. Supreme Court and Judge John Minor Wisdom of the U.S. Court of Appeals for the Fifth Circuit. From 1990 to 1993, he served as an Assistant to the Solicitor General of the United States. He is recognized as a leading appellate lawyer in Best Lawyers in America (also listed for administrative law, commercial litigation, banking and finance litigation, and ERISA litigation), Chambers USA: America's Leading Lawyers, Guide to the World's Leading Lawyers, Washingtonian "Top Lawyers," and Super Lawyers (also listed in the "Top 100" Lawyers in Washington, DC). Mr. Long is an adjunct professor at Georgetown University Law Center.

Mr. Farr is a named partner in the well known D.C. firm Farr & Taranto. He clerked for then-Associate Justice William H. Rehnquist (October term 1973), and served from 1976 to 1978 as an assistant to the Solicitor General.

Two amici, two days of argument

2011-11-17T07:50:00.001-08:00

The National Journal is reporting (in a story behind a pay wall) that the Court has decided two procedural matters:

1. An amicus will indeed be appointed to argue that the Anti-Injunction Act (26 U.S.C. 7421) precludes jurisdiction in this case (at least with respect to the private plaintiffs), and that a second amicus will be appointed to defend the Eleventh Circuit's judgment on severability. Again, the Eleventh Circuit held that the minimum coverage provision was completely severable from the remainder of the ACA. None of the parties have advocated this position; even the United States argues that, if the mandate goes down, so too must the guaranteed issue and community rating provisions.

2. The arguments will be staged over two days. The Court will take up the Anti-Injunction Act and the constitutionality of the individual mandate on the first day, and the Medicaid question and severability on the second day.

These details were reportedly conveyed to the litigants on Monday. Official orders from the Court setting out these details, along with the names of the amici, should be forthcoming soon.

United States files notice of appeal in Goudy-Bachman

2011-11-15T13:40:00.001-08:00

You can access the notice, filed in the United States District Court for the Middle District of Pennsylvania, here.

The Third Circuit will presumably wait to see what happens at the Supreme Court before doing anything substantive with this case.

United States files brief as appellee in Fifth Circuit

2011-11-15T13:31:00.001-08:00

This is hardly the main event, but I thought I should note that the United States has filed its brief as appellee in Physician Hospitals of America v. Sebelius, the case currently before the Fifth Circuit. This case involves a challenge to the ACA's provider self-referral provisions. The government argues that the Fifth Circuit lacks jurisdiction over the plaintiffs' claims for two reasons: (1) the claims are "wholly unsubstantial," and (2) the plaintiffs "failed to bring their challenge in the manner prescribed by Congress."

You can access the United States's brief here. (And you can access the plaintiffs' previously filed brief as appellants here.)

The plaintiffs have until November 23 to file their reply brief. The Fifth Circuit has yet to set a date for oral argument.

Next steps for the Court

2011-11-15T09:22:00.001-08:00

Yesterday was huge, of course, but there remain a number of outstanding procedural details that the Court will need to specify in the coming days or weeks. Here is a brief list for those interested:

1. Set an argument date (or dates): The Court releases argument calendars periodically over the course of the Term, as the number of granted cases fill the relevant calendar. Thus far, the Court has already conducted its October and November sittings, and it has released the calendars for December and January. Normally, the Court would not release its March calendar for another several weeks. But perhaps this case is different, given the number of people involved and the level of national interest. In all events, it is virtually certain this case will be scheduled for late March; argument in mid-April would give the justices precious little time to draft their opinions, respond to one another, etc., by the end of the term in June. Hearing argument in March gives them an additional month to write the opinions. Moreover, it seems quite likely that it will be scheduled over two days; five and a half hours is too long for even the most interested human being to maintain her concentration.

2. Set a briefing schedule: In a post yesterday, I sketched out the briefing schedule dictated by the default rules that apply if the Court does not specify otherwise. That calls for all of the topside briefs (to be filed by everyone, since they are all petitioners in one of the cases) to be filed during the week between Christmas and New Year's Day. That seems a little unfortunate. The Court has a little wiggle room -- about 10-14 days that it could extend the default dates and still have the case argued the week of March 26. So I'm guessing the Court might extend the dates by a week or so. Regardless, the Court is likely to solidify the briefing schedule -- either by issuing an order or denying a request for an extension -- relatively soon.

3. Perhaps appoint amicus to argue the AIA issue: This is not mandatory. The Court could hear argument on the question without any attorney actually contending that the AIA bars jurisdiction here. But the matter is complex enough that the justices might benefit from such an airing. (They will get the argument in an amicus brief regardless.) If the Court is to appoint someone to argue, it needs to be soon, so that person will be ready by March.

Perhaps there are some other housecleaning matters I have overlooked. But those seem to be the big ones at this point.

A reason for granting separately on the severability question

2011-11-15T08:52:00.001-08:00

A number of people have asked why the Court felt the need to grant review on the severability issue as a separate question presented. For the Court, were it to hold that the minimum essential coverage provision exceeds Congress's enumerated powers, would have to face the severability question regardless. Indeed, I would hazard a guess that, in most cases in which the issue of severability has arisen, it has not been presented to the Court in the cert petition as a separate question.

It occurs to me, though, that there is a very practical reason for doing so here: Had the Court not set aside a separate 90 minutes to explore the issue, any questions from the justices about the severability of the individual mandate would have been taken by the public and the media as a signal that the questioning justice believed that the mandate was unconstitutional. (For why else would he be asking about its severability?) Of course, this would not have affected the outcome in any way. But in a case where the media will by hyper-sensitive to even the slightest move by any of the justices, its helpful to diffuse this dynamic. As a separate question, with a separate 90 minutes, all nine (well, I guess eight) can explore it robustly without any concern as to what they might be signaling.

A tentative schedule

2011-11-14T09:13:00.001-08:00

This may well be adjusted slightly by the Court in the coming days. But based on the Court's rules, absent further modification, here are the tentative due dates for the briefs. (Note that all of the parties are a petitioner and a respondent in at least one of the cases. Thus, the United States, the NFIB, and the states will all be filing briefs as petitioners and briefs as respondents.)

1. December 29: briefs for the petitioners.

2. January 5: amicus curiae briefs supporting the petitioners.

3. January 30: briefs for the respondents.

4. February 6: amicus curiae briefs supporting the respondents.

5. March 7: reply briefs for the petitioners.

With this briefing schedule, it seems likely the Court would hear the cases the week of March 26. Currently, March 26, 27, and 28 of that week are scheduled as argument days. The justices can adjust things as they please, but it seems most likely that the Court will schedule these arguments for one or two of those days.

The questions presented

2011-11-14T08:50:00.001-08:00

Here is a comprehensive list of the questions on which the Court granted certiorari this morning:

On severability (90 minutes of argument):

1(a). (From NFIB v. Sebelius) "The question presented is whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution."

1(b). (Question 3 from Florida v. HHS) "[T]o what extent (if any) can the mandate be severed from the remainder of the Act?"

On the constitutionality of the minimum coverage provision (2 hours of argument):

2. (From HHS v. Florida) "Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision."

On the Anti-Injunction Act (1 hour of argument):

3. (Added by the Court in its order this morning) "Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a)."

On the constitutionality of the ACA's Medicaid amendments (1 hour of argument):

4. (Question 1 from Florida v. HHS) "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?"

Big news is the Medicaid grant

2011-11-14T07:36:00.001-08:00

Again, the really big news of the morning -- if there is anything surprising -- is that the Court has decided to take up the constitutionality of the ACA's Medicaid amendments. Specifically, the question is whether the spending conditions that the ACA imposes on the states are effectively "coercive," such that they amount to an impermissible commandeering. There is no split on the question, and no lower court judge has yet voted to uphold the states' claim. But the Court will take it up.

As a purely legal matter, this is a bigger issue than the individual mandate. For much of the modern liberal state is undwerwritten by Congress's use of the conditional spending power.

No action on the other petitions

2011-11-14T07:33:00.001-08:00

Just to confirm, the Court took no action on the three other pending petitions, those in Thomas More Law Center v. Obama (No. 11-117), Liberty University v. Geithner (No. 11-438), or Virginia v. Sebelius (No. 11-420). In all likelihood, the Court will simply hold these petitions until June, and then dispose of them in a manner consistent with its holding in the Florida case (meaning either they will deny cert or grant, vacate, and remand).

Five and a half hours of argument

2011-11-14T07:11:00.001-08:00

Perhaps I have misread the order, but it looks as if the Court has set aside five and a half hours for oral argument: 90 minutes for the issues raised in both the NFIB and Florida petitions, 2 hours for the U.S. petition, 1 hour for the AIA issue, and 1 hour for Question 1 in Florida's petition (the constitutionality of the Medicaid amendments). This probably means it will take up two full days on the argument calendar, perhaps March 27 and 28. Not quite what happened for McCulloch (which I think was a whole week of argument), but as close as we have come in a long while.

Court takes Medicaid question

2011-11-14T07:06:00.001-08:00

So here are the two biggest consequences of the order:

* The Court has limited itself to the Florida case, and is presumably holding the Thomas More Law Center and Liberty University petitions. (It will likely need to appoint someone to argue the AIA question against the parties.)

* The Court granted on the Medicaid question. This is a bit of a surprise, raising the constitutional stakes of the case rather substantially. For if the Court were cut back on Congress's spending power, it would have significant long-term ramifications for the scope of federal power.

Court grants

2011-11-14T07:00:00.001-08:00

The order list is here.

Here is the substance of the grant:

11-393 ) NAT. FED'N INDEP. BUSINESS V. SEBELIUS, SEC. OF H&HS, ET AL.
11-400 ) FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL.
The petition for a writ of certiorari in No. 11-393 is granted. The petition for a writ of certiorari in No. 11-400 is granted limited to the issue of severability presented by Question 3 of the petition. The cases are consolidated and a total of 90 minutes is allotted for oral argument.

11-398 DEPT. OF H&HS, ET AL. V. FLORIDA, ET AL.
The petition for a writ of certiorari is granted. In addition to Question 1 presented by the petition, the parties are directed to brief and argue the following question: "Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a)." A total of two hours is allotted for oral argument on Question 1. One hour is allotted for oral argument on the additional question.

11-400 FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL.
The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.

Tune into SCOTUSblog

2011-11-13T21:32:00.001-08:00

Beginning at 9:50 EST, SCOTUSblog will have live blog coverage of the Court's release of its order list. So you can tune in here for the play-by-play action.

The biggest questions for Monday morning

2011-11-13T20:01:00.001-08:00

It seems a foregone conclusion that the Court will, in one form or another, grant review tomorrow morning to review the constitutionality of the ACA. So what suspense is there in the order list to be issued at 10:00 a.m.? Here are the two most significant questions likely to be resolved tomorrow morning.

1. Will the Court grant any of the petitions other than those from the Florida case? The Florida case (and its three petitions in Nos. 11-393, 11-398, and 11-400) presents the Court with the best vehicle for deciding the constitutionality of the mandate. It has both states and private individuals as plaintiffs. It has Paul Clement as a principal lawyer for the challengers. It is the only case that presents the Medicaid question. It gives the Court the chance to decide every significant issue in the litigation. Thus, there seems little doubt the Court will grant one or more of these petitions. The only real question is whether it will take up the others--Thomas More Law Center v. Obama or Liberty University v. Geithner. My guess is no. My guess is that the Court grants the Florida petitions but holds the other two (and then holds Virginia v. Sebelius as well).

2. Will the Court grant on any questions other than the constitutionality of 26 U.S.C. 5000A? The overwhelming consensus that the Court will grant tomorrow concerns only the constitutionality of the minimum coverage provision. And if the Court takes up that question, it will necessarily have to take up any jurisdictional questions that might prevent it from ruling on the merits. (The does not mean that the Court will necessarily decide whether the Anti-Injunction Act applies here, if 26 U.S.C. 7421(a) is not jurisdictional. But at the very least the Court must decide whether the AIA is jurisdictional.) Moreover, if the Court holds any aspect of the ACA unconstitutional, it will have to face the severability question. But will the Court grant on any of the other questions presented in the petitions, such as (1) whether the ACA's Medicaid provisions exceed Congress's spending power, (2) whether the employer mandate as applied to state governments violates the structural principles of federalism, or (3) whether the employer mandates imposed on private employers exceed Congress's enumerated powers. The most likely of the three is the Medicaid question. And there is some reason to think that the Court might want that question in front of it, in part so it could potentially "split the baby" and thus appear a little less partisan. (Recall Grutter and Gratz, or Van Orden and McCreary.) The other questions seem like longshots. Even on the Medicaid question, I think the chances are less than 50 percent.

There are some other outstanding issues as well, to be sure. First, if the Court only grants the petitions from the Florida cases, it will probably need to appoint someone to argue that the AIA precludes jurisdiction. (Two possibilities are Alan Morrison, who has authored the amicus briefs on behalf of former IRS Commissioners Mortimer Caplin and Sheldon Cohen, or Kevin Walsh, a former Scalia clerk and author of multiple amicus briefs filed in the lower courts addressing jurisdictional issues.) Second, the Court could rephrase some of the questions presented, though this seems unlikely. Finally, the Court might also set a briefing schedule, though the default rules would seem to work just fine for a late March argument.

But these are procedural details. The real substance of tomorrow's events will concern the cases and questions granted. Should be a fun morning.

Monday

2011-11-10T11:56:00.001-08:00

The Court has just announced that there will be no orders issued this afternoon. So Monday morning at 10:00 EST it will be.

Symposium in Richmond

2011-11-10T05:26:00.000-08:00

In the event something big happens today, I will be en route to Richmond, Virginia, to participate in the University of Richmond School of Law's Allen Chair Symposium, "Everything But the Merits: Analyzing the Procedural Aspects of the Healthcare Litigation." For those interested, you can find a symposium schedule here. And you can watch a live webcast of the symposium through a link available here.

Conference tomorrow

2011-11-09T10:56:00.000-08:00

I hardly need mention that the justices will be considering five of the six ACA cert petitions at their private conference tomorrow morning (those filed in Thomas More Law Center v. Obama, NFIB v. Sebelius, HHS v. Florida, Florida v. HHS, and Liberty University v. Geithner).

It is conceivable that the Court will issue an order tomorrow afternoon, announcing that it has granted certiorari (and perhaps specifying the questions on which it has granted--if it grants in a case but does not accept all of the questions presented in that petition, or if it wants to re-phrase a question--and even a briefing schedule). More likely, the order will come down at 10:00 a.m. EST on Monday morning.

Of course, it is possible that the Court will do nothing definitive, and re-list the petitions for consideration at its next conference. If this occurs, it would be because the Court could not come to the necessary level of agreement on which petitions to grant, or which specific questions to consider. Given how much time each of them has had to consider these matters, though, I'm guessing a re-list is unlikely.

Update on Virginia v. Sebelius

2011-11-08T14:03:00.000-08:00

This is not the big news of the day, but some items to update on Virginia v. Sebelius (No. 11-420), now the sixth of the six ACA cases in the certiorari queue:

* The United States late last week filed its brief in response, which you can find here. The government argues that the Court should hold Virginia's petition pending the resolution of the other cases. (Virginia's petition would be largely beside the point if the Court upholds the ACA. But there is a chance the Court might reach the question of state standing to challenge the individual mandate in the Florida cases, and that might warrant a grant, vacate, and remand.)

* The clerk's office yesterday distributed Virginia's petition for the justices' November 22 conference. Consistent with the SG's recommendation, the odds are in favor of the Court simply holding the petition pending the outcome of the other cases.

BREAKING NEWS: D.C. Circuit upholds ACA

2011-11-08T09:01:00.000-08:00

The D.C. Circuit has just issued an opinion upholding the individual mandate in Seven-Sky v. Holder. You can find the opinion here.

Judge Silberman wrote for a 2-0 majority. Judge Edwards concurred. Judge Kavanaugh concluded there was no jurisdiction.

More shortly.

UPDATE: Here is a quick outline of Silberman's opinion for the Court:

1. The Anti-Injunction Act does not deprive the court of jurisdiction because Congress did not intend the AIA to "cover penalties unconnected to tax liability or enforcement."

2. There is no "activity"-"inactivity" distinction in the text of the Constitution, or in the Supreme Court's precedents. If anything Wickard v. Filburn comes very close to authorizing the regulation of what the plaintiffs characterize as "inactivity."

3. "Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause." (p.34)

4. "That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations." (p.36)

Of course, the votes that really matter are those at the Supreme Court. In a sense, this decision merely operates as an additional brief for the justices to read in making their decision this spring. But I think it is hard to overestimate the importance of another highly esteemed Republican jurist (joining Judges Sutton and Marcus) writing a detailed, thoughtful opinion that upholds the mandate. I am making no comment on the merits here, but just a political observation. Judge Silberman's decision alters the political dynamic, and potentially substantially.

UPDATE 2: Judge Kavanaugh authored a 65-page (!) dissent concluding that the Anti-Injunction Act deprived the court of jurisdiction.

Response due in Virginia v. Sebelius

2011-11-03T21:50:00.000-07:00

The response of the United States (which most likely will be a brief in opposition to certiorari) is due today in Virginia v. Sebelius (No. 11-420). I fully anticipate that the government will argue that the case does not warrant review, as (1) the Fourth Circuit did not reach the merits, and (2) the issue the Fourth Circuit did reach--whether Virginia has standing to challenge the minimum coverage provision based on its enactment of its Health Care Freedom Act--is unnecessary for the Court to resolve in order to address the ACA's constitutionality (and is arguably a question on which there is no split of authority). In other words, whether Virginia has standing is, at this point, largely a sideshow. For even if the Anti-Injunction Act deprives the Court of jurisdiction in the actions brought by the private plaintiffs, the Florida case already would present the state standing issue (as several of those states have comparable "health care freedom" laws).

I will post a copy of the government's brief (assuming it is filed today) as soon as I can find it.

Pacific Legal Foundation files amicus brief in Virginia v. Sebelius

2011-11-03T21:39:00.000-07:00

The Pacific Legal Foundation--joined by Matthew Sissel, Americans for Choice in Medicine, and the Center for Constitutional Jurisprudence--has filed a cert stage amicus curiae brief in Virginia v. Sebelius (No. 11-420). The brief argues (1) that the Fourth Circuit's decision that Virginia lacks standing to challenge the individual mandate conflicts with rulings from the Second, Third, Fifth, and D.C. Circuits, and (2) the Court's decision in Massachusetts v. Mellon has caused confusion and needs to be clarified.

You can access the brief here.

Two more amicus briefs

2011-11-03T09:38:00.000-07:00

A scan of the Supreme Court docket sheets shows that two more cert stage amicus curiae briefs have been filed--one by the Western Center for Journalism is HHS v. Florida (No. 11-398) and one by Lawrence J. Dickson, PhD., in Florida v. HHS (No. 11-400). I have been unable to locate copies of either brief, however. If someone out there happens to have one--or any other amicus briefs that I have missed--please feel free to send them my way, and I will be happy to post them.

UPDATE: I have found the Western Center for Journalism's brief on Westlaw (though not in a PDF form). And the second half of its argument is a "birther" claim--that the ACA is invalid because federal legislation must be signed by the sitting President (absent a veto override), and "Mr. Obama has not yet verified whether he meets all of the requirements for minimum eligibility, namely whether he is a natural born citizen." Needless to say, this claim was not raised by the challengers below and is not within the questions presented in the petitions.

Center for Constitutional Jurisprudence files amicus brief

2011-11-01T08:36:00.000-07:00

The Center for Constitutional Jurisprudence, the Pacific Legal Foundation, and Matt Sissel have jointly filed a cert stage amicus curiae brief in Florida v. HHS (No. 11-400). The brief only addresses the question whether the ACA's Medicaid amendments exceed Congress's spending power (by coercing the states to expand their coverage). Specifically, it argues that the case "presents the opportunity to reaffirm that the Spending Clause, like the Commerce Clause, has outer limits," and that "[t]he coercion prong of the Dole Spending Clause analysis must be given effect." Counsel of record is John Eastman, a constitutional law professor at Chapman University School of Law. Former Attorney General Edwin Meese III is also on the brief.

You can access the brief here.

American Hospital Association files amicus brief

2011-10-29T08:53:00.000-07:00

As they have in the lower courts, the American Hospital Association--joined by the Association of American Medical Colleges, the Catholic Health Association of the United States, Federation of American Hospitals, the National Association of Children’s Hospitals, and the National Association of Public Hospitals and Health Systems--have filed a cert stage amicus brief in HHS v. Florida (No. 11-398). The brief argues that the Court's "prompt review will resolve business uncertainty, allow uncontroversial ACA provisions to move forward, and begin addressing the crisis of uninsurance." It also argues that the Court should deny cert on whether the ACA's Medicaid provisions are constitutional.

You can access the brief here.

Association of American Physicians and Surgeons files amicus brief

2011-10-28T13:05:00.000-07:00

So the avalanche is now beginning . . . .

The Association of American Physicians and Surgeons, as well as a handful of doctors, have filed a cert stage amicus curiae brief in Florida v. Sebelius (No. 11-400). The brief makes three arguments: (1) the severability analysis employed by the Eleventh Circuit operates as a judicial line-item veto, and thus violated Article I's requirement of bicameralism; (2) the minimum essential coverage provision does not involve "commerce" due to the absence of the involvement of two parties; and (3) the minimum essential coverage provision violated Article I's requirement of presentment because it was simultaneously enacted and amended.

You can access the brief here.

Family Research Council files amicus brief

2011-10-28T09:38:00.000-07:00

The Family Research Council and thirty Members of the House of Representatives have jointly filed a cert stage amicus curiae brief applicable to both NFIB v. Sebelius (No. 11-393) and Florida v. HHS (No. 11-400). The brief is authored by Nelson Lund, constitutional law professor at George Mason University. The brief contends that the Eleventh Circuit misapplied the Court's severability doctrine, and that if the Court concludes that any aspect of the ACA is unconstitutional, it should also resolve the severability questions.

You can access the brief here.

California Endowment files amicus brief

2011-10-28T09:15:00.000-07:00

The California Endowment--"a private foundation committed to the expansion of affordable, quality health care for all Californians, with an emphasis on providing health care to underserved and low income communities"--has filed a cert-stage amicus curiae brief in HHS v. Florida (No. 11-398). The brief is authored by constitutional law professor (and former Stanford Law School dean) Kathleen Sullivan. In essence, it argues that the minimum coverage provision is a proper exercise of Congress's commerce power because (a) an individual's uninsured status provides a "tangible link" to commerce, and (b) the provision of uncompensated care substantially affects interstate commerce. The brief also argues that the individual mandate is an essential aspect of a broader regulatory scheme, which scheme plainly regulates interstate commerce.

You can access the brief here.

Thomas More Law Center v. Obama (No. 11-117)

2011-10-27T13:55:00.000-07:00

Supreme Court docket sheet:
Available here

Decisions below:
Thomas More Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010)
Thomas More Law Center v. Obama, 651 F.3d 529 (CA6 2011)

Certiorari stage documents:
Petition for a writ of certiorari
United States's brief in response
Reply brief of Petitioners
Brief of the HR Policy Association as amicus curiae
Brief of the Mountain States Legal Foundation as amicus curiae
Brief of the Pacific Legal Foundation as amicus curiae
Brief of Mortimer Caplin and Sheldon Cohen as amicus curiae

Liberty University v. Geithner (No. 11-438)

2011-10-27T13:44:00.000-07:00

Supreme Court docket sheet:
Available here.

Decisions below:
Liberty University v. Geithner, 753 F. Supp. 2d 611 (W.D. Va. 2010).
Liberty University v. Geithner, 2011 WL 3962915 (CA4 2011).

Certiorari stage documents:
Petition for a writ of certiorari.
United States's brief in response.

Virginia v. Sebelius (No. 11-420)

2011-10-27T13:36:00.000-07:00

Supreme Court docket sheet:
Available here

Decisions below:
Virginia v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010) (on motion to dismiss)
Virginia v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010) (on motions for summary judgment)
Virginia v. Sebelius, 656 F.3d 253 (CA4 2011)

Certiorari stage documents:
Petition for a writ of certiorari
United States's brief in response
Brief of Pacific Legal Foundation et al. as amici curiae
Brief of Delegate Bob Marshall et al. as amici curiae

Florida v. HHS (No. 11-400)

2011-10-27T13:23:00.000-07:00

Supreme Court docket sheet:
Available here.

Decisions below:
Florida v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (on motion to dismiss).
Florida v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (on motions for summary judgment).
Florida v. HHS, 648 F.3d 1235 (CA11 2011)

Certiorari stage documents:
Petition for a writ of certiorari
United States's brief in response (also response in No. 11-393)
Waiver of right to respond by NFIB et al.
Reply brief of State Petitioners
Brief of Chamber of Commerce as amicus curiae
Brief of America's Health Insurance Plans as amicus curiae
Brief of American Center for Law and Justice et al. as amici curiae
Brief of Family Research Council et al. as amici curiae
Brief of Association of American Physicians and Surgeon et al. as amici curiae
Brief of Center for Constitutional Jurisprudence et al. as amici curiae

Merits stage documents (Medicaid expansion):

* Briefs for parties

Brief of State Petitioners on Medicaid

Brief of United States (Medicaid)

* Amicus Curiae briefs in support of state petitioners

Brief of Center for Constitutional Jurisprudence et al.

Brief of Association of American Physicians and Surgeons et al.

Brief for Economists

Brief of James F. Blumstein

Brief of Texas Public Policy Foundation et al. on Medicaid

Brief of Independence Institute

Brief of Indiana State Legislators et al.

Brief of American Civil Rights Union et al.

* Amicus Curiae briefs in support of United States

Brief of American Hospital Association et al.

Brief of National Health Law Program et al.

Brief of Disability Rights Legal Center

Brief of State of Oregon et al.

Brief of State Legislators

Brief of David Satcher et al.

Brief of Health Law and Policy Scholars et al.

Brief of SEIU et al.

Brief of Harry Reid and Nancy Pelosi et al.

Brief of National Minority AIDS Council et al.

Brief of Faithful Reform in Health Care et al.

Brief of Leadership Council on Civil and Human Rights et al.

Brief of David Riemer et al.

Merits stage documents (severability):
* Briefs for the parties
Brief of State Petitioners on Severability
Brief of Private Petitioners on Severability
Brief of United States (Severability)
* Brief of Court-Appointed Amicus

Brief of Court-Appointed Amicus Curiae H. Bartow Farr, III

* Amicus curiae briefs in support of petitioners

Brief of Members of the United States Senate on the Issue of Severability

Brief of the American Center for Law & Justice et al. on the Severability Issue
Brief of America's Health Insurance Plans et al. on Severability
Brief of Texas Public Policy Foundation et al. on Severability
Brief of the Chamber of Commerce on Severability
Brief of the Family Research Council et al. on Severability
Brief of the American Civil Rights Union on Severability
Brief of Competitive Enterprise Institute et al. (Severability Issue)
Brief for Economists Regarding Severability
Brief of Justice and Freedom Fund (Severability)
Brief of National Restaurant Association (Severability)
* Amicus curiae briefs in support of United States

Brief of American Academy of Actuaries

Brief of California et. al.

Brief of AARP et al.
Brief of National Indian Health Board et al.
Brief of American Medical Student Association et al.
Brief of American Public Health Association et al.
Brief of American Benefits Council
* Amicus curiae briefs in support of neither party
Brief for the American Hospital Association et al. on Severability
* Amicus curiae briefs in support of the Court-appointed amicus

Brief of Asian and Pacific Islander American Health Forum et al.

Brief of David Riemer et al.

Brief of Washington and Lee Black Lung Clinic
Brief of Missouri Attorney General

HHS v. Florida (No. 11-398)

2011-10-27T13:14:00.000-07:00

Supreme Court docket sheet:
Available here.

Decisions below:
Florida v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (on motion to dismiss)
Florida v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (on motions for summary judgment)
Florida v. HHS, 648 F.3d 1235 (CA11 2011)

Certiorari stage documents:
Petition for a writ of certiorari
Appendix to petition
Brief in response for State Respondents
Brief in response for Private Respondents
Reply brief of the United States
Brief of Chamber of Commerce as amicus curiae
Brief of America's Health Insurance Plans as amicus curiae
Brief of the California Endowment as amicus curiae
Brief of the American Hospital Association et al. as amici curiae

Merits stage documents (minimum coverage provision):
* The parties' briefs
United States's Brief for Petitioners
Brief for the Private Respondents
Brief for the State Respondents
* Amicus curiae briefs in support of United States
Brief of AARP
Brief of Health Care for All et al.
Brief of Health Care Policy History Scholars
Brief of Jewish Alliance for Law & Social Action et al.
Brief of Prescription Policy Choices et al.
Brief of State Legislators
Brief of American Nurses Association et al.
Brief of 104 Health Law Professors
Brief of the California Endowment
Brief of Senate Majority Leader Harry Reid et al.
Brief of American Cancer Society et al.
Brief of Small Business Majority Foundation et al.
Brief of National Women's Law Center et al.
Brief of Young Invincibles
Brief of American Hospital Association et al.
Brief of Service Employees International Union et al.
Brief of State of Maryland et al.
Brief of Commonwealth of Massachusetts
Brief of Governor of Washington Christine Gregoire
Brief of Child Advocacy Organizations
Brief of Blue Cross and Blue Shield of Massachusetts
Brief of American Association of People with Disabilities et al.
Brief of Constitutional Law Scholars
Brief of LAMBDA Legal Defense and Education Fund et al.
Brief of Constitutional Law and Economics Professors
Brief of Economic Scholars
Brief of NAACP Legal Defense & Educational Fund et al.
Brief of David R. Riemer et al.
Brief of Advocacy for Patients with Chronic Illness
Brief of CALPERS
Brief of Barry Friedman, Matthew Adler, et al.
* Amicus curiae briefs in support of neither party
Brief of Health Foundation of Greater Cincinnati
* Amicus curiae briefs in support of respondents
Brief of Senator Rand Paul
Brief of Landmark Legal Foundation
Brief of Cato Institute et al.
Brief of American College of Pediatricians et al.
Brief of Tax Foundation
Brief of Liberty University et al.
Brief of American Center for Law and Justice et al.
Brief of Washington Legal Foundation et al.
Brief of Center for Constitutional Jurisprudence et al.
Brief of Independent Women's Forum
Brief of Employer Solutions Staffing Group
Brief of Citizens' Council for Health Freedom
Brief of Speaker John Boehner
Brief of Docs4PatientCare et al.
Brief of Members of the United States Senate
Brief of Institute for Justice
Brief of Montana Shooting Sports Association
Brief of Association of American Physicians and Surgeons et al.
Brief of Judicial Watch, Inc.
Brief of Economists
Brief of Single Payer Action et al.
Brief of Project Liberty
Brief of Commonwealth of Virginia et al.
Brief of Rutherford Institute
Brief of Texas Public Policy Foundation
Brief of Mountain States Legal Foundation
Brief of Virginia Delegate Bob Marshall et al.
Brief of Catholic Vote and Steven J. Willis
Brief of American Legislative Exchange Council
Brief of Authors of The Origins of the Necessary and Proper Clause et al.
Brief of Partnership for America
Brief of Citizens and Legislators in Fourteen Health Care Freedom States
Brief of the Missouri Attorney General
Brief of Caesar Rodney Institute
Brief of State of Oklahoma
Brief of Thomas More Law Center et al.
Brief of Egon Mittelman, Esq.
Brief of Foundation for Moral Law
Brief of Liberty Legal Foundation
Brief of Stephen M. Trattner
Brief of 1851 Center for Constitutional Law
Brief of Former U.S. Department of Justice Officials
Brief of American Civil Rights Union et al.
Brief of American Catholic Lawyers Association
Brief of HSA Coalition et al.

Merits stage documents (Anti-Injunction Act):
* Court-Appointed Amicus Robert A. Long
Brief for Court-Appointed Amicus Curiae Supporting Vacatur
* The parties' briefs
Brief for the Private Respondents
Brief for State Respondents
United States's Brief for Petitioners
* Amicus curiae briefs in support of vacatur
Brief of Tax Law Professors
Brief of Mortimer Caplin and Sheldon Cohen
* Amicus curiae briefs in support of petitioners or respondents
Brief of Cato Institute
Brief of Liberty University et al.
Brief of American Center for Law and Justice
Brief of State Chambers of Commerce et al.

NFIB v. Sebelius (No. 11-393)

2011-10-27T13:06:00.000-07:00

Supreme Court docket sheet:
Available here

Decisions below:
Florida v.  HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (on motion to dismiss)
Florida v.  HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (on motions for summary judgment)
Florida v. HHS, 648 F.3d 1235 (CA11 2011)

Certiorari stage documents:
NFIB petition for a writ of certiorari
United States's brief in response (also response in No. 11-400)
Brief of Chamber of Commerce as amicus curiae
Brief of America's Health Insurance Plans as amicus curiae
Brief of Landmark Legal Legal Foundation as amicus curiae
Brief of Family Research Council et al. as amicus curiae

Merits stage documents:
* Briefs for the parties
Brief for Private Petitioners on Severability
Brief for State Petitioners on Severability
Brief for Respondents (Severability)
* Brief of Court-Appointed Amicus
Brief of Court-Appointed Amicus Curiae H. Bartow Farr, III
* Amicus curiae briefs in support of petitioners
Brief of Members of the United States Senate on the Issue of Severability
Brief of the American Center for Law & Justice et al. on the Severability Issue
Brief of America's Health Insurance Plans et al. on Severability
Brief of Texas Public Policy Foundation et al. on Severability
Brief of the Chamber of Commerce on Severability
Brief of the Family Research Council et al. on Severability
Brief of the American Civil Rights Union on Severability
Brief of Competitive Enterprise Institute et al. (Severability Issue)
Brief for Economists Regarding Severability
Brief of Justice and Freedom Fund (Severability)
Brief of National Restaurant Association (Severability)
Brief of Western Center for Journalism on Severability
* Amicus curiae briefs in support of respondents
Brief of American Academy of Actuaries
Brief of California et. al.
Brief of AARP et al.
Brief of National Indian Health Board et al.
Brief of American Medical Student Association et al.
Brief of American Public Health Association et al.
Brief of American Benefits Council
* Amicus curiae briefs in support of neither party
Brief for the American Hospital Association et al. on Severability
* Amicus curiae briefs in support of the Court-appointed amicus
Brief of Asian and Pacific Islander American Health Forum et al.
Brief of David Riemer et al.
Brief of Washington and Lee Black Lung Clinic
Brief of Missouri Attorney General

Dedicated pages for Supreme Court documents

2011-10-27T12:45:00.000-07:00

We are now at the stage where handy links at the top for all the documents that have been filed in the various cases would be useful. So the next six posts will provide those. I will then create some links to those posts, which will be updated as matters proceed.

Another amicus brief

2011-10-27T10:03:00.000-07:00

Another cert stage amicus curiae brief has been filed, this one specifically in Florida v. HHS (No. 11-400). The brief has been filed by the American Center for Law and Justice, 105 Members of Congress, and the Supreme Court Committee to Declare Obamacare Unconstitutional.

The brief argues that the Court should grant review to decide (1) whether the minimum essential coverage provision exceeds Congress's enumerated powers, and (2) if not, whether the mandate can be severed from the rest of the ACA. (I have a hunch these folks will get their wish.)

You can access the brief here.

Government files reply brief in Florida v. HHS

2011-10-27T08:05:00.000-07:00

The Solicitor General has filed the government's cert reply brief in HHS v. Florida (No. 11-398). You can access that brief here.

AHIP's cert brief

2011-10-27T07:51:00.000-07:00

The cert-stage amicus curiae brief for America's Health Insurance Plans (authored by Patricia Millet et al. at Akin Gump, rather than Seth Waxman and his colleagues at Wilmer, who had written the Fourth Circuit brief) can be found here.

November 10 conference

2011-10-26T17:07:00.000-07:00

Sorry--I was in Berkeley today, speaking at a joint Federalist Society-ACS event concerning the constitutionality of the ACA. (I seem to be away from a computer whenever there is big ACA-related news.)

The news from today, as has been widely reported, is that the five petitions in which responses have been filed (all pending ACA petitions except that in Virginia v. Sebelius) were distributed today to the justices' chambers, and they are now scheduled for discussion at the November 10 conference. It seems highly likely (for all the reasons we have been discussing) that the Court will vote to grant cert that day--in at least one of the cases, on at least the question of the minimum essential coverage provision's constitutionality. We are therefore likely to see an order from the Court granting certiorari either in the afternoon of November 10, or at 10:00 a.m. on Monday, November 14, as part of the regular order list.

Of course, the Court has a variety of decisions to make with respect to which petitions to grant and which specific questions to accept for review. We will discuss that subject further here in the coming days. (Lyle Denniston of SCOTUSblog has a good discussion of these matters here.) But whatever the Court decides on these questions, we are now probably looking at oral argument in the last week of March. If anyone wants to participate in a pool, I am picking March 28.

AHIP files amicus cert brief

2011-10-26T08:17:00.000-07:00

The organization America's Health Insurance Plans has filed a cert-stage amicus curiae brief in the three Florida cases--though I have yet to locate a copy. (I can just see on the docket sheets that it has been filed.) You will recall that AHIP also filed an amicus brief at the Fourth Circuit in Virginia v. Sebelius. (You can access that brief here.) That brief focused exclusively on the severability issue, and argued (as one would expect) that, if the individual mandate is declared unconstitutional, several other aspects of the ACA's regulation of the insurance industry must be voided as well. I would guess that this brief argues much the same. I will post a copy once I can find one.

Chamber of Commerce files amicus cert brief

2011-10-25T14:11:00.000-07:00

Speaking of amicus briefs . . . .

The United State Chamber of Commerce's National Litigation Center--perhaps the second most active and influential litigant at the Supreme Court, next only to the Solicitor General--has filed a cert-stage amicus curiae brief, applicable to Nos. 11-393 (NFIB v. Sebelius), 11-398 (HHS v. Florida), and 11-400 (Florida v. HHS). You can access the brief here.

As one might expect, the brief makes two basic points:

1. This case is of enormous importance to the business community, so the Court should grant cert forthwith to eliminate the cloud of uncertainty that hovers over the entire ACA; and

2. If the minimum essential coverage provision is unconstitutional, declaring only it unconstitutional (without voiding other ACA regulations of the insurance market) "will have disastrous consequences for the health insurance market."

The Chamber has retained appellate attorneys at O'Melveny & Meyers to co-author the brief.

States file their reply brief in Florida v. HHS

2011-10-25T14:02:00.000-07:00

The 26 state government plaintiffs have filed their reply brief in Florida v. HHS (No. 11-440). You can access that brief here.

Also, I should note (as most of you probably know already) that the Supreme Court has set up a web page with the documents that have been filed in these cases. You can access that page here. It is unclear whether this page will also house access to the avalanche of amicus curiae briefs that soon awaits us. We should find out soon.

Next Wednesday

2011-10-20T09:37:00.000-07:00

The next significant event to occur internally at the Supreme Court related to the ACA cases is for the clerk's office to distribute the various cert petitions to the justices' chambers for consideration. As of now, briefing is essentially complete in five of the six petitions (but for the United States's response to Virginia's petition in Virginia v. Sebelius, and the various reply and amicus briefs, which are only optional). Thus, five of the six cases are now ready for distribution.

The Court's case distribution schedule is available here. As you will see, the next distribution date is Wednesday, October 26. If the cases are indeed distributed on that date (which we can check on the Court's docket sheets), we will know that they are scheduled for consideration by the justices at the November 10 conference.

(Of course, one or more justices could ask for more time to consider the petitions, which would cause the cases to be "re-listed" and scheduled for discussion at the next conference, November 22. And justices can ask for more time still; cases are often re-listed more than once.)

In all events, we should know more about the timing of the Court's intervention very soon.

November 10 conference?

2011-10-19T13:51:00.000-07:00

As usual, Lyle Denniston of SCOTUSblog has some keen analysis (available here) on when, in light of yesterday's filings, the Court is likely take up the various cert petitions. November 11 is a federal holiday. So if the cases are considered November 10, the order list announcing that one or more of the petitions had been granted would presumably issue at 10:00 a.m. on Monday, November 14.

Oral argument tomorrow at the Eighth Circuit

2011-10-19T09:15:00.000-07:00

Most of the attention is currently on the six cert petitions pending at the Supreme Court--and rightly so. But it is also worth mentioning that the Eighth Circuit will be hearing argument tomorrow in Kinder v. Geithner in St. Paul, Minnesota. The panel consists of Circuit Judges Kermit E. Bye (appointed by President Clinton), Lavenski R. Smith (appointed by President George W. Bush), and Steven M. Colloton (also appointed by President George W. Bush).

Again, the District Court dismissed this lawsuit on the ground that it lacked subject matter jurisdiction. (You can access that opinion here.) Thus, the Eighth Circuit may very well limit itself to the jurisdictional questions -- just as the Third and Ninth Circuits have done in similar cases. But taking no chances, the parties and numerous amici have also addressed the merits. So it is certainly conceivable that the court, if it concludes that the matter is justiciable, would proceed to address the constitutionality of the minimum coverage provision.

U.S. and states file cert response briefs

2011-10-19T07:00:00.000-07:00

Well, no one can accuse the federal government of foot-dragging.

The United States filed two certiorari response briefs late yesterday afternoon. First, it filed a consolidated brief for cases 11-393 (NFIB v. Sebelius) and 11-400 (Florida v. HHS). (You can access that brief here.) Then it filed its response in Liberty University v. Geithner (11-438). (You can access that brief here.) Both briefs were submitted well ahead of schedule--the response in Liberty University was not due until November 10. Not to be outdone, the 26 states then filed their cert response brief in HHS v. Florida (11-398). (You can access that brief here.)

Lyle Denniston of SCOTUSblog reports on all these developments here.

This leaves only one response outstanding--that of the United States in Virginia v. Sebelius. (The parties may well file cert-stage reply briefs, but these are entirely optional. Moreover, there may be a slew of cert-stage amicus briefs.)

The next big question, then, concerns when the justices will schedule these petitions for discussion at conference. We were previously anticipating an order granting cert on December 12 (or perhaps December 9). But that date may now have moved up.

Private plaintiffs respond in the Florida cases

2011-10-14T10:52:00.000-07:00

The private plaintiffs (the National Federation of Independent Businesses and two individuals, Mary Brown and Kaj Ahlburg) have filed their certiorari-stage response briefs in the Florida cases. More accurately, they have filed their response to the United States's petition for a writ of certiorari in HHS v. Florida, No. 11-398, and they have waived their right to respond to the states' petition in Florida v. HHS, No. 11-400.

You can access their response brief in HHS v. Florida here. And you can access their waiver in Florida v. HHS here.

November 10, and some other moving pieces

2011-10-13T09:24:00.000-07:00

This is the date that the United States's response is due in Liberty University v. Geithner, the latest response date for any of the pending six petitions for certiorari. It is also the date that the United State's response is now due in Arizona v. United States (thanks to a recently granted extension), the case in which the federal government has sued (successfully to this point) to block the four most controversial provisions of Arizona's controversial S.B. 1070. To oversimplify a bit, Arizona's law requires that, in several circumstances, police officers must take steps to enforce federal immigration law and to investigate whether certain individuals are legally present in the United States.

I mention this only because, in landmark cases such as this, timing can matter. If the Court were to wait to receive all the responses in the ACA cases before making a cert decision, then it is on schedule to consider the petition in Arizona v. United States at the very same conference. As Lyle Denniston detailed yesterday, this would be the conference of December 9. And if the Court were to grant in both cases at that conference, it would be releasing a rather monumental order list that afternoon (or perhaps Monday morning, December 12).

More importantly, the two disputes are presently on track to be heard in late March or mid-April. And it is probably worth asking whether the Court might be chary to issue two huge decisions, within days of each other, on such highly-charged, highly-partisan issues, in a manner that risks creating the perception that the Court is acting "politically"--particularly if both cases are decided according to an ideologically predictable 5-4 split. Moreover, this concern might grow even more acute if the Court grants in Fisher v. University of Texas, the case challenging the University's use of race in undergraduate admissions (which is also on track, if certiorari is granted, to be heard this spring).

Who knows how much these considerations might affect the justices, either consciously or unconsciously? Moreover, who knows exactly what practical steps they might take, even if these considerations do matter? One response would be to defer or deny review in Arizona or Fisher. But if all three cases end up at the Court this spring--a distinct possibility at this point--there seems a decent chance that exactly how the Court resolves Arizona and Fisher will affect its approach to the ACA.

More on the timing of the Court's consideration of the various cert petitions

2011-10-12T10:28:00.000-07:00

Lyle Denniston has this terrific post over at SCOTUSblog walking through the details of the timing of the Court's consideration of the six pending petitions for writs of certiorari. The post is worth a careful read in its entirety, but the bottom line is this: if the Court wishes to consider each of the petitions (and the responses filed to those petitions) before making a decision as to which case (or cases) to grant, its decision would likely come from its conference on December 9 (with an order either later that day or on the following Monday, December 11).

Schedule set in Walters v. Holder

2011-10-12T09:30:00.000-07:00

This is the case alternatively known as Bryant v. Holder and Walters v. Holder. (The caption in the district court's docket uses the latter, so I am going with that.)

The District Court for the Southern District of Mississippi has issued a case management order setting the schedule for further proceedings. It provides as follows:

* Discovery is due by January 16, 2012.

* Motions are due by February 1, 2012.

* The pretrial conference is set for May 17, 2012, before District Judge Keith Starrett

* The bench trial is set for June 4, 2012, before District Judge Keith Starrett.

Somehow I suspect that this scheduled bench trial might be overtaken by other events by June 2012.

In any event, you can access the District Court's case management order here.

Third Circuit rules in favor of United States in Purpura v. Sebelius

2011-10-12T09:15:00.000-07:00

This is a few days old, but the Third Circuit recently issued a per curiam opinion in Purpura v. Sebelius affirming the district court's dismissal of the lawsuit. The panel consisted of Circuit Judges Scirica, Smith, and Vanaskie.

In their complaint, pro se plaintiffs Nicholas Purpura and Donald Laster alleged that the ACA violated nineteen different clauses in the Constitution. Those claims included that "the Act originated in the Senate, not the House of Representatives, in violation of Article I, Section 7 of the Constitution; that the provision in the Act requiring all non-exempt individuals to maintain a certain minimum level of health insurance or pay a fine violates the Commerce Clause; and that President Obama lacked authority to sign the Act into law because he is not a natural-born citizen." (CA3 op. at 2)

The district court held that the plaintiffs lacked Article III standing, and the Third Circuit affirmed that judgment. Here is the crux of the Third Circuit's analysis:

[A]ppellants' complaint here is “barren” with respect to standing: appellants have provided no information about themselves beyond the fact that they are New Jersey residents and believe that the Act is unconstitutional. These allegations are insufficient to establish standing. (CA3 op. at 4)

You can access the Third Circuit's opinion here.

Cert reply brief in Thomas More Law Center

2011-10-12T06:51:00.000-07:00

The petitioners have filed their reply brief in Thomas More Law Center v. Obama (No. 11-117). Here is the essence of their argument (copied from page 3):

Petitioners request that the Court grant this petition. Alternatively, Petitioners request that the Court grant the petition on the second question presented and consolidate it with the Florida petition. Petitioners could then focus their briefing and arguments on the as-applied question, which could also include addressing the issue of whether Salerno applies in the first instance. Consolidation would not complicate the briefing and presentation of the arguments to the Court. Rather, it would complement them and ensure that all issues were fully presented and addressed. If necessary and as Respondents suggest, Petitioners could also address the applicability of the Anti-Injunction Act.

You can access the reply brief here.

Caplin and Cohen amicus brief in Thomas More Law Center

2011-10-11T15:59:00.000-07:00

I was just able to locate a PDF of the amicus curiae brief filed at the Supreme Court by Mortimer Caplin and Sheldon Cohen in Thomas More Law Center v. Obama. The brief is written by longtime Supreme Court advocate Alan Morrison, the former head of Public Citizen.

Caplin and Cohen are former Commissioners of the Internal Revenue Service. And their entire brief is devoted to explaining why the Anti-Injunction Act (26 U.S.C. 7421) applies to any preenforcement challenge to the individual mandate, thus barring Supreme Court jurisdiction over any of the pending challenges. It is essential reading for any of you digging into the weeds of the jurisdictional issues.

You can access the brief here.

Liberty University cert petition docketed

2011-10-11T12:48:00.000-07:00

The petition for a writ of certiorari filed by the plaintiffs in Liberty University v. Geithner has been officially docketed at the Supreme Court. Its docket number is 11-438, and you can follow all the action on the official docket sheet here. As that sheet shows, the United States's response is due November 10.

U.S. granted an extension in Physician Hospitals v. Sebelius

2011-10-10T17:23:00.000-07:00

Physician Hospitals of America v. Sebelius is the case currently pending before the Fifth Circuit. At issue is ACA section 6001, which limits the plaintiffs' ability to bill for services to Medicare patients who were referred by a physician-owner of a hospital. The United States prevailed below in the Eastern District of Texas (you can find the district court's opinion here). The physicians' constitutional claims are that section 6001 lacks a rational basis (and thus violates the principles of due process and equal protection), amounts to an impermissible taking of property without just compensation, and is unconstitutionally vague.

The challengers have filed their brief on the merits. The United States' brief as appellee was originally due October 5, but the Fifth Circuit has granted the government an extension until October 19.

Handicapping the questions presented

2011-10-10T14:30:00.000-07:00

There are now six distinct petitions for writs of certiorari pending at the Supreme Court relating to the constitutionality of the ACA. These petitions, in turn, ask the Court to grant review on a number of different questions. The likelihood that the Court will actually take up these various questions, however, varies considerably. The point of this post is just to briefly sketch out the likelihood of the Court granting on each of the respective questions.

* * *

1. Question presented: Whether the minimum essential coverage provision (26 U.S.C. 5000A) is a valid exercise of Congress's enumerated powers (either as an exercise of its power to regulate interstate commerce--pursuant to the Commerce Clause alone or in conjunction with the Necessary and Proper Clause--or as an exercise of its taxing power).

Likelihood of grant: 99%

Comment: Again, a lower court (the Eleventh Circuit) has declared a federal statute of enormous significance unconstitutional; there is a clear split of authority in the lower courts; and the United States has asked the Court to grant review. If there is a constellation of factors that guarantees certiorari, this is it.

* * *

2. Question presented: Whether the Anti-Injunction Act (26 U.S.C. 7421) deprives a federal court of jurisdiction to hear a pre-enforcement challenge to the minimum essential coverage provision.

Likelihood of grant: 80%

Comment: There is now a clear, three-circuit split on this question, and the United States has suggested that the Court grant on this issue. Whether the Court formally grants a petition raising this question is largely beside the point, though, as the Court must assure itself of its own subject matter jurisdiction regardless. In other words, if the Court grants in any of the cases, it will have to address this issue regardless.

* * *

3. Question presented: Whether the individual mandate, if it is held unconstitutional, can be severed from the rest of the ACA, or whether other aspects of the Act (such as the prohibition on preexisting condition exclusions), or even the ACA in its entirety, are insevarable and thus should be declared void and unenforceable.

Likelihood of grant: 80%

Comment: Again, it is really just a technicality as to whether the Court formally grants certiorari on this question. If the Court takes the case, and it holds that the minimum coverage provision is unconstitutional, it will have to address its severability from the rest of the Act regardless.

* * *

4. Question presented: Whether the ACA's Medicaid provisions, due to the enormous amount of federal dollars at stake, effectively coerce the states to expand their coverage and thus unconstitutionally "commandeer" the states to implement a federal legislative program.

Likelihood of grant: 30%

Comment: There is no split of authority on this question. It is only raised in the states' petition in Florida v. HHS. The United States prevailed on this issue below, so no federal statute has been declared unconstitutional. And the issue of when a federal spending condition becomes so "coercive" as to amount to "compulsion" is an extremely dicey one, which the justices have effectively avoided for the last thirty years. No doubt, it is a question of enormous importance. But I am not sure that that fact alone is enough for the Court to be interested in opening up this can of worms. Perhaps, but I would be slightly surprised.

* * *

5. Question presented: Whether the ACA's employer mandates are unconstitutional as applied to state governments.

Likelihood of grant: 15%

Comment: As the states' cert petition in Florida v. HHS essentially concedes, holding in favor of the states on this question would require the Court to overrule (or at least substantially modify) its decision in Garcia v. San Antonio Metropolitan Transit Authority. Garcia (as later reaffirmed in New York and Printz) held that Congress can impose "generally applicable" legal obligations on the states--obligations that apply to the states no differently than any other employers across the economy. That is what the ACA does with respect to employers and their obligations to provide health insurance (or replacement subsidies) to their employees. The states would like the Court to address whether, as applied to the state governments, these mandates amount to an unconstitutional incursion on state autonomy. Given that there is no split, and that this question essentially asks the justices to overrule well entrenched precedent, the likelihood of the Court taking up the question seems relatively small.

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6. Question presented: Whether the ACA's employer mandates are unconstitutional as applied to private employers.

Likelihood of grant: 5%

Comment: This question is presented only in the Liberty University petition. And it would not seem to have much of a chance. Almost everyone seems to think that regulating employers' provision of health insurance--actors who are plainly engaged in commercial activity--is well within Congress's commerce power. Finding in favor of Liberty here would require a substantial reexamination of the Court's post-1937 Commerce Clause jurisprudence. Justice Thomas might be interested, but I doubt any of the other eight are.

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7. Question presented: Whether a state that enacts a law akin to Virginia's Health Care Freedom Act has standing to challenge the ACA's individual mandate on the ground that the federal law conflicts with state law.

Likelihood of grant: 3%

Comment: The question of when, exactly, a state has standing to resolve whether one of its laws is preempted by federal law is an interesting and rather complicated one. At one point in this saga, it appeared that the Court might have to take up this question to reach the merits of the ACA's constitutionality. But that is no longer the case; the constitutionality of the minimum coverage provision is squarely presented in cases other than Virginia v. Sebelius, where private plaintiffs have a much clearer claim to standing. This issue, then, is largely beside the point, at least in this litigation. There is no need for the Court to address it here and now, and it raises lots of thorny issues under both Article III and the Declaratory Judgment Act. There seems little reason that the Court would want to bite off more than it needs to.

A new lawsuit: Boyle v. Sebelius

2011-10-10T13:00:00.000-07:00

A new lawsuit challenging the constitutionality of the minimum essential coverage provision has been filed in the United States District Court for the Central District of California. The case is entitled Boyle v. Sebelius, and the docket number is 2:11-cv-07868. The suit was filed in the court's Western Division, based in Los Angeles.

The lawsuit is pro se, and it presents eighteen distinct claims--including claims that 26 USC 5000A violates the Eighth Amendment and the Contracts Clause, issues that do not seem to have been raised in any of the other lawsuits.

The complaint is a whopping 342 pages (!), and thus is presented in parts. You can access part 1 here, part 2 here, and part 3 here.

Cert petition filed in Liberty University v. Geithner

2011-10-10T11:02:00.000-07:00

The plaintiffs in Liberty University v. Geithner have filed a petition for a writ of certiorari at the Supreme Court. This is now the sixth ACA-related cert petition currently pending at the Court.

The petition presents three questions for review:

1. Whether the Anti-Injunction Act (AIA) bars courts from deciding the limits of federal power to enact a novel and unprecedented law that forces individuals into the stream of commerce and coerces employers to reorder their business to enter into a government mandated and heavily regulated health insurance program when the challenged mandates are penalties, not taxes, where the government argues Congress never intended the AIA to apply, and where the Petitioners are currently being forced to comply with various parts of the law and thus have no other alternative remedy but the present action.

2. Whether Congress exceeded its enumerated powers by enacting a novel and unprecedented law that forces individuals who otherwise are not market participants to enter the stream of commerce and purchase a comprehensive but vaguely defined and burdensome health insurance product, and if so, to what extent can this essential part of the statutory scheme be severed.

3. Whether Congress exceeded its enumerated powers by enacting a novel and unprecedented law that forces private employers into the health insurance market and requires them to enter into third-party contracts to provide a comprehensive but a vaguely defined health insurance product to their employees and extended beneficiaries, and if so, to what extent can this essential part of the statutory scheme be severed.

The first question is certworthy in its own right, as the United States noted in its cert petition in HHS v. Florida: there is now a 2-1 circuit split on whether the AIA bars federal courts from entertaining any pre-enforcement challenges to the minimum coverage provision. Question 2 is already presented in the other petitions, and is plainly certworthy for all the reasons we have discussed. Question 3 (involving the employer mandate, as applied to private employers) is not raised in any of the other petitions, and probably is not certworthy, at least according to the Court's traditional criteria (as spelled out in Rule 10).

The Court does not need to grant a separate cert petition to address the AIA issue (a question that is not formally presented in the other petitions). But doing so might be the simplest procedural mechanism for doing so. The justices could arrange for this case to be argued first (probably on the same day as the Florida case), and thus ensure they leave themselves ample time for a full airing of the jurisdictional issues.

You can access Liberty University's cert petition here.