National Press Club event

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

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

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

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 Amici Curiae Cato Institute, Competitive Enterprise Institute, Pacific Legal Foundation, 14 Other Organizations, and 333 State Legislators Supporting Respondents (Individual Mandate Issue)

* Brief of Amici Curiae American College of Pediatricians, Christian Medical & Dental Associations, American Association of Pro-Life Obstetricians & Gynecologists, Catholic Medical Association, Physicians for Life, National Association of Pro Life Nurses, and Medical Students for Life of America in Support of Respondents and Affirmance on the Individual Mandate Issue (Minimum Coverage Provision)

* Brief of the Tax Foundation as Amicus Curiae in Support of Respondents (Minimum Coverage Provision)

* Brief of Amici Liberty University, Inc., Michele Waddell and Joanne Merrill in Support of the Respondents on the Minimum Coverage Provision

* Amici Curiae Brief of the American Center for Law and Justice, 119 Members of the United States Congress, and More Than 144,000 Supporters of the ACLJ in Support of Respondents and Urging Affirmance on the Minimum Coverage Provision, Otherwise Known as the Individual Mandate, Issue

* Brief of the Washington Legal Foundation and Constitutional Law Scholars as Amici Curiae in Support of Respondents

* Brief of Center for Constitutional Jurisprudence, Judicial Education Project, Reason Foundation, the Individual Rights Foundation, the Heritage Foundation, Ending Spending, Inc., and Former Senators George Lemieux and Hank Brown as Amici Curiae in Support of Respondents (Minimum Coverage Provision Issue)

* Brief Amicus Curiae of the Independent Women's Forum in Support of Respondents (Individual Mandate)

* Brief of Amicus Curiae Employer Solutions Staffing Group in Support of Respondents on the Minimum Coverage Question

* Argument on Behalf of Amicus Curiae, Citizens' Council for Health Freedom, Supporting the Respondents, and Addressing the Minimum Coverage Provision Issue

* Brief of Speaker of the House John Boehner as Amicus Curiae in Support of Respondents on the Minimum Coverage Provision Issue

* Brief for Docs4PatientCare, Benjamin Rush Society, Pacific Research Institute, Galen Institute, and Angel Raich as Amici Curiae on the Minimum Coverage Provision Issue in Support of Respondents

* Brief of Members of the United States Senate as Amici Curiae in Support of Respondents on the Minimum Coverage Provision Issue

* Brief of Amicus Curiae Institute for Justice in Support of Respondents (Minimum Coverage Provision)

* Brief of Montana Shooting Sports Ass’n as Amicus Curiae in Support of Respondents (Minimum Coverage)

* Brief of Association of American Physicians and Surgeons, Inc., and Individual Physicians as Amici Curiae in Support of Respondents (Individual Mandate Issue)

* Brief of Judicial Watch, Inc., as Amicus Curiae in Support of Respondents on the Minimum Coverage Provision

* Brief for Amici Curiae Economists in Support of Respondents Regarding Individual Mandate

* Brief on Behalf of Single Payer Action, It's Our Economy, and Fifty Medical Doctors Who Support Single Payer as Amici Curiae in Support of Respondents (Minimum Coverage Provision)

* Brief Amici Curiae of Project Liberty, in Support of the Respondents on the Individual Mandate

* Brief Amicus Curiae of the Commonwealth of Virginia ex rel. Attorney General Kenneth T. Cuccinelli, II, in Support of Appellees on the Issue of the Unconstitutionality of the Mandate and Penalty in which Governor Robert F. McDonnell and the Republican Governors Public Policy Committee Join

* Brief of the Rutherford Institute as Amicus Curiae in Support of Respondents on the Minimum Coverage Provision Issue

* Brief of Amicus Curiae Texas Public Policy Foundation Supporting Respondents on the Individual Mandate

* Amicus Curiae Brief of Mountain States Legal Foundation in Support of Respondents (Minimum Coverage Provision)

* Brief Amicus Curiae of Virginia Delegate Bob Marshall, Virginia Senator Dick Black, Oklahoma Representative Charles Key, Institute on the Constitution, U.S. Justice Foundation, Gun Owners Foundation, The Lincoln Institute for Research and Education, The United States Constitutional Rights Legal Defense Fund, Inc., Conservative Legal Defense and Education Fund, Policy Analysis Center, Downsize DC Foundation, Gun Owners of America, Inc., The Liberty Committee, Public Advocate of the United States, American Life League, Inc., and DownsizeDC.org in Support of Respondents (Minimum Coverage Provision)

* Brief of Amici Curiae Catholic Vote and Steven J. Willis in Support of Respondents and Urging Affirmance on the Minimum Coverage Provision

* Brief of the American Legislative Exchange Council as Amicus Curiae in Support of Respondents (Minimum Coverage Provision)

* Brief of Authors of The Origins of the Necessary and Proper Clause (Gary Lawson, Robert G. Natelson and Guy Seidman) and the Independence Institute as Amici Curiae in Support of Respondents (Minimum Coverage Provision)

* Brief of Amicus Curiae Partnership for America in Support of Respondents for America in Support of Respondents on the Minimum Coverage Provision Issue

* Amicus Brief on Behalf of Citizens and Legislators in the Fourteen Health Care Freedom States in Support of Respondents (Minimum Coverage Provision)

* Brief of the Missouri Attorney General as Amicus Curiae in Support of respondents Regarding the Unconstitutionality of the of the Minimum Coverage Provision

* Brief of Amicus Curiae Caesar Rodney Institute in Support of Respondents (Minimum Coverage Provision)

Amicus curiae briefs supporting petitioners or respondents on the Anti-Injunction Act:

* 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

You can read it here.

Still waiting on the SG's Medicaid brief

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

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

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

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

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)

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

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

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

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

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

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

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

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

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

I will update this post and link to additional briefs as I come across them:

* Brief of Health Care for All, Inc., Health Law Advocates, Inc., the Massachusetts Hospital Association, Inc., the Massachusetts League of Community Health Centers, Inc., Greater Boston Interfaith Organization, Inc., and Community Catalyst, Inc. as Amici Curiae in Support of Petitioners Urging Reversal on the Minimum Coverage Provision Issue

* Brief of Health Care Policy History Scholars as Amici Curiae in Support of Petitioners (Minimum Coverage Provision)

* Brief of Amici Curiae Jewish Alliance for Law & Social Action (JALSA), Jewish Council on Urban Affairs (JCUA), Jewish Social Policy Action Network (JSPAN), New England Jewish Labor Committee (JLC), and Professor Abigail R. Moncrieff in Support of Petitioners on the Individual Liberty Implications of the Minimum Coverage Provision

* Brief Amici Curiae of Prescription Policy Choices, Professors of Law, and Professors of Health Policy in Support of Petitioners on the Minimum Coverage Provision

* Brief Amici Curiae of State Legislators from All Fifty States, the District of Columbia, and Puerto Rico Supporting Petitioners (Minimum Coverage Provision)

* Brief for Amici Curiae American Nurses Association; American Academy of Pediatrics; American Medical Student Association; Doctors for America; National Hispanic Medical Association; and the National Physicians Alliance in Support of Petitioners and Reversal on the Minimum Coverage Provision

* Brief of 104 Health Law Professors as Amici Curiae in Support of Petitioners (Minimum Coverage Provision)

* Brief of Amicus Curiae the California Endowment in Support of Petitioners and in Favor of Reversal on the Minimum Coverage Provision

* Brief of Senate Majority Leader Harry Reid, House Democratic Leader Nancy Pelosi, and Congressional Leaders and Leaders of Committees of Relevant Jurisdiction as Amici Curiae in Support of Petitioners (Minimum Coverage Provision)

* Brief of Amici Curiae the American Cancer Society, American Cancer Society Cancer Action Network, American Diabetes Association, and American Heart Association, Supporting Petitioners Urging Reversal on the Minimum Coverage Provision Issue

* Brief on Behalf of Small Business Majority Foundation, Inc. ("SBM") and the Main Street Alliance ("MSA") as Amici Curiae in Support of Petitioners (Minimum Coverage Provision)

* Brief of the National Women's Law Center, et al. as Amicus Curiae in Support of Petitioner on the Minimum Coverage Provision

* Brief of Young Invincibles as Amicus Curiae in Support of Petitioner

* Brief for the American Hospital Association et al. as Amici Curiae in Support of Petitioners with Respect to the Individual Mandate

* Brief of Service Employees International Union and Change To Win as Amici Curiae Addressing the Minimum Coverage Provision Issue and Supporting Petitioners and Reversal

* Brief of the States of Maryland, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, New York, Oreogon, and Vermont, the District of Columbia, and the Virgin Islands as Amici Curiae in Support of Petitioners (Addressing Minimum-Coverage Provision)

* Brief of Amicus Curiae, Commonwealth of Massachusetts (Supporting Petitioners and Addressing Whether Enacting Minimum Coverage Provision of ACA Authorized by Article I)

* Amicus Brief of the Governor of Washington Christine Gregoire in Support of Petitioners (Minimum Coverage Provision)

* Brief of Child Advocacy Organizations as Amici Curiae in support of Petitioners on the Minimum Coverage Provision Question

* Brief of Amicus Curiae Blue Cross and Blue Shield of Massachusetts, Inc., in Support of Petitioners (Minimum Coverage Provision)

* Brief of the American Association of People with Disabilities, the Arc of the United States, Breast Cancer Action, Families USA, Friends of Cancer Research, March of Dimes Foundation, National Breast Cancer Coalition, National Coalition for Cancer Survivorship, National Health Law Program, National Organization for Rare Diseases, National Senior Citizens Law Center, National Women's Health Network, the Ovarian Cancer National Alliance, and Voices for America's Children as Amicus Curiae in Support of Petitioners

* Brief of Constitutional Law Scholars as Amici Curiae in Support of Petitioners (Minimum Coverage Provision)

* Brief for LAMBDA Legal Defense and Education Fund, Inc., AIDS United, Asian & Pacific-Islander Coalition on HIV/AIDS, Black AIDS Institute, Center for HIV Law and Policy, Gay & Lesbian Advocates & Defenders, Gay & Lesbian Medical Association, HIV Medicine Association, HIV Prevention Justice Alliance, Latino Commission on AIDS, National Association of People with AIDS, National Center for Lesbian Rights, National Center for Transgender Equality, National Native American AIDS Prevention Center, U.S. P:ositive Women's Netword/World, and Treatment Access Expansion Project, as Amici Curiae in Support of Petitioner on the Minimum Coverage Requirement Issue

* Brief of Constitutional Law and Economics Professors as Amici Curiae in Support of Petitioners (Minimum Coverage Provision)

* Brief of Amici Curiae Economic Scholars in Support of Petitioners Urging Reversal on the Minimum Coverage Issue

* Brief of Amici Curiae NAACP Legal Defense & Educational Fund, Inc., American Civil Liberties Union, and the Leadership Conference on Civil and Human Rights in Support of Petitioners (Minimum Coverage Provision)

* Brief Amici Curiae of David R. Riemer and Community Advocates in Support of Petitioners on the Minimum Coverage Question

* Brief of Amicus Curiae Advocacy for Patients with Chronic Illness, Inc. in Support of Petitioners

(I am still trying to locate the briefs filed by Barry Friedman, Matthew Adler, et al. and CALPERS.) I just found them:

* Brief for Amicus Curiae California Public Employees' Retirement System in Support of Petitioner, Department of Health and Human Services (Minimum Coverage Provision)

* Brief of Law Professors Barry Friedman, Matthew Adler, et al., as Amici Curiae in Support of Petitioners and Reversal on the Minimum-Coverage Provision Issue

Here is a brief on the minimum coverage provision supporting neither party:

* Brief for the Health Foundation of Greater Cincinnati as Amicus Curiae in Support of Neither Party (Minimum Coverage Issue)

And here are two briefs in support of vacatur on the Anti-Injunction Act issue:

* Brief for Amici Curiae Tax Law Professors Supporting Vacatur (Anti-Inunction Act)

* Brief for Amici Curiae Mortimer Caplin and Sheldon Cohen Urging Vacatur on the Anti-Injunction Act Issue in Support of Neither Side

Many thanks to all of you who have these briefs my way.