U.S. and states file cert response briefs

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

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

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

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

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

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

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

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

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

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

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.

*   *   *

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.

*   *   *

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

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

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.

Conference in Richmond November 11

For those of you living near Richmond, Virginia, the University of Richmond School of Law will be hosting a conference on November 11 entitled Everything but the Merits: Analyzing the Procedural Aspects of the Healthcare Litigation. The event is being hosted by Professor Kevin Walsh (who has authored several amicus briefs in the Virginia and Florida cases) and the University of Richmond Law Review. The event will also feature a live webcast.

All of the pertinent details for the event are available here.

The docket pages

For those interested in checking the docket pages at the Supreme Court, here are the docket pages for the five cases in which cert petitions have thus far been filed (in order of their docket numbers):

* No. 11-117: Thomas More Law Center v. Obama.

* No. 11-393: National Federation of Independent Businesses v. Sebelius.

* No. 11-398: HHS v. Florida.

* No. 11-400: Florida v. HHS.

* No. 11-420: Virginia v. Sebelius.

Response due November 3 in Virginia v. Sebelius

The Supreme Court has assigned docket number 11-420 to Virginia v. Sebelius, in which the Commonwealth has filed a petition for a writ of certioari. You follow the docket entries here. The United States's response to the petition is due November 3.

Liberty University to file petition for certiorari next week

As reported by Lyle Denniston at SCOTUSblog, the plaintiffs in Liberty University v. Geithner plan to file a petition for a writ of certiorari at the Supreme Court next week. This is the case, of course, in which the Fourth Circuit (by a vote of 2 to 1) held that the Anti-Injunction Act (26 U.S.C. 7421) bars federal courts from hearing a pre-enforcement challenge to the minimum essential coverage provision. In its cert petition last week in HHS v. Florida, the United States contended that the Court should take up this question as well--either sua sponte, or by granting in Liberty University. There is no real chance that the Court could avoid this issue regardless, as Article III requires it to be satisfied of its own subject matter jurisdiction, no matter what the parties have argued (or included in their questions presented).  

Virginia files a petition for cert

(This post is now corrected to add the two additional questions presented I missed on p. ii.)

Virginia apparently does not want to be left out of the party. So the Commonwealth has joined the fun, filing a petition for a writ of certiorari that asks the Supreme Court to review the Fourth Circuit decision holding that Virginia lacks Article III standing to challenge the ACA's minimum essential coverage provision. (Lyle Denniston of SCOTUSblog reports on this development here.)

Virginia's petition presents six questions:

1. Whether the United States Circuit Court of Appeals for the Fourth Circuit erred when, contrary to well developed sovereign standing law in this Court and in other circuits, it became the first circuit to deny that a State of the Union has standing to defend its own code of laws.

2. Whether the Fourth Circuit erred, and opened a circuit split, when it construed the Virginia Health Care Freedom Act contrary to the construction placed upon it by the chief law officer of the Commonwealth of Virginia by holding it to be merely symbolic and therefore not a real law capable of giving rise to a sovereign injury, basing this holding in part upon a misreading of the Virginia Constitution and Acts of the Assembly.

3. Whether the Fourth Circuit erred when, contrary to definitive pronouncements of this Court and opinions of other circuits, it read the political question doctrine prong of Massachusetts v. Mellon as having continued vitality so as to prevent a State from challenging an enactment of the United States on enumerated powers grounds.

4. Whether the power claimed by Congress in the Patient Protection and Affordable Care Act (PPACA) to mandate that a citizen purchase a good or service from another citizen is unconstitutional because the claimed power exceeds the outer limits of the Commerce Clause even as executed by the Necessary and Proper Clause. 

5. Whether the PPACA mandate and penalty can be sustained as an exercise of the taxing ower.   

6. Whether the PPACA mandate and penalty are severable from all of the remaining provisions of the enactment.  

It is unclear whether questions one, two, or three are certworthy, standing alone (no pun intended). Questions four, five, and six are already presented in the other cases. There would be no point for the Court to hold this petition, and then--if the justice ultimately declare the mandate unconstitutional--grant, vacate, and remand this case the Fourth Circuit, as that court has already held that Virginia lacks standing. So it seems that the Court either needs to either (a) grant and hear the justiciability questions, or (b) simply deny the petition outright.

You can access Virginia's petition here.

Response briefs and timing

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

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

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

1. Does Congress exceed its enumerated powers and violate basic principles of federalism when  it coerces States into accepting onerous conditions that  it  could not impose  directly by threatening to withhold all  federal  funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending  power that this Court  recognized in  South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply? 

2. May Congress treat States no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage, as suggested by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or has Garcia's approach been overtaken by subsequent cases in which this Court has explicitly recognized judicially enforceable limits on Congress‘s power to interfere with state sovereignty? 

   The United States did not address these questions yesterday in its petition for certiorari. Moreover, there is no split of lower court authority on either of them. Thus, the SG has a decent argument that neither of these questions, at least under the Court's traditional criteria, are certworthy.

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

The significance of yesterday

As the dust begins to settle from all of yesterday's events, it is probably appropriate--at least in a preliminary sort of way--to take stock of what those events mean. (Howard Bashman at How Appealing gathers commentary from around the web here. And Timothy Jost offers his take here over at Health Affiars. )

None of this is rocket science. But I thought it worth noting the following three developments as particularly significant:

* First and foremost, by asking the Court to grant cert in HHS v. Florida, the Obama administration virtually guaranteed that the Court will take the case and decide it this term--with the argument probably taking place in March, and a decision handed down in June. I cannot think of an occasion in recent history where (a) a lower court has declared a federal statute unconstitutional, (b) that decision created a circuit split, (c) the government asked the Court to grant review, and (d) the Court denied cert--let alone on a question of this magnitude. So the Court's review is now essentially assured.

* That does not mean, though, that the Court will necessarily reach the merits. As I have written before, one can imagine a collection of five justices, perhaps moved by different motivations, coalescing around a jurisdictional holding that prevents the Court from deciding whether the Act is constitutional. In this respect, it is therefore significant that the government (as revealed in the papers filed yesterday) remains committed to the position it has taken recently in the circuit courts--namely, that the Anti-Injunction Act does not preclude the Court from hearing a pre-enforcement challenge to the minimum coverage provision. Of course, the Court could nevertheless find the AIA bars review; it has a constitutional obligation (under Article III) to assure itself of its subject matter jurisdiction, regardless of what the parties argue. But the fact that the parties are united against such a reading of the AIA makes that result marginally less likely.

* It is interesting--and surprising--that the states (presented as question 2 in their petition) have asked the Court to review whether Garcia v. San Antonio Metropolitan Transit Authority remains good law, or whether it should be reconsidered. Garcia establishes a bedrock principle of contemporary federalism, permitting Congress to subject the states to "generally applicable" regulation--regulation that, more or less, applies to all persons or entities equally. Thus, Congress can regulate state governments as employers (or polluters or proprietors) in the same way it can regulate Microsoft or Google or United Airlines or whomever else. Congress can require all of them to pay a minimum wage, not to dump toxins into rivers, and the like. If the Court were to dislodge Garcia in some way, it would have major ramifications. (I should note here that just because the states have raised this as a question in their petition does not mean that the Court must grant on it. Indeed, the Court could grant the petition and limit its review to questions 1 and 3, or even just question 3, which concerns the individual mandate.)

No doubt, there is more of note to be culled from yesterday's events. But to me, those are the three most important developments in terms of adding to or altering what we already knew before Wednesday.

We shall soon learn, I would guess, whether the parties plan to file responses to the respective petitions, and whether the Court wants their responses regardless. (The Court generally does not grant a petition for certiorari without having seen a response, but this case is different, with both sides agreeing that cert is justified.) And that will determine the timing of the Court's grant of review and, in turn, the date of the argument.

In other words--at long last--the real game is just about on.