Private petitioners, SG file reply briefs on severability

Here they are:

* Reply Brief for Private Petitioners on Severability

* Reply Brief for the Respondents (Severability)

And, at long last, the briefs are all in--a mere 150 of them, give or take a few. Let the last-minute preparations for argument begin!

Counsel list set for argument

As Tony Mauro reports here, the list of lawyers who will be arguing each of the questions presented has now been set. Importantly, the Solicitor General himself, Donald Verrilli, will argue three of the four issues on behalf of the Government. Paul Clement will argue three of the four questions (though not the exact same three) for the state challengers. Here is the counsel list, issue by issue:

March 26 (Anti-Injunction Act issue):

* Court-appointed amicus Robert A. Long, Jr. (in support of vacatur)

* For the United States: Solicitor General Donald Verrilli

* For the challengers: Greg Kastas (Jones Day)

March 27 (minimum coverage provision issue):

* For the United States: Solicitor General Donald Verrilli

* For the state challengers: Paul Clement

* For the private challengers: Michael Carvin

March 28 (Medicaid expansion issue):

* For the United States: Solicitor General Donald Verrilli

* For the state challengers: Paul Clement

March 28 (severability issue):

* For the United States: Deputy Solicitor General Edwin Kneedler

* For the challengers: Paul Clement

* Court-appointed amicus H. Bartow Farr, III (in support of the Eleventh Circuit's decision)

States file reply brief on severability

Here it is: Reply Brief for State Petitioners on Severability (filed in Nos. 11-393 and 11-400).

Final day for briefs

Hard to believe. What began with the original complaints filed on March 23, 2010--in Virginia, Florida, and elsewhere--ends (largely) today as briefing is completed at the Supreme Court. (Largely, but not entirely, as several ACA issues kicking around in the lower courts will likely remain unresolved, unless the Court declares the Act void in its entirety.)

Specifically, the parties' reply briefs on the severability question (part of both 11-393 and 11-400) are due by 5:00 today. I will post them as soon as I have copies.

Court-appointed amicus reply brief

The Court-appointed amicus curiae, Mr. Robert A. Long, Jr. of Covington & Burling, has filed his reply brief in HHS v. Florida (No. 11-398), addressing the Anti-Injunction Act question. You can access his brief here.

Two ACA events Tuesday (and a new blog)

Two interesting events are scheduled for Tuesday:

* First, at 9:30 a.m. EDT, the Washington Legal Foundation is hosting "Prepping for Judicial Surgery: A Crash Course on Healthcare Reform in the U.S. Supreme Court." The panelists will be Tom Goldstein, Ilya Somin, and Andrew Pincus. You can access a webcast of the event here.

* Second, the California Endowment is hosting a moot court of the ACA arguments from 6:00 to 7:30 p.m. PDT in Los Angeles, featuring Kathleen Sullivan and Theodore Boutrous. Information, and a link to listen to a live stream, are available here.

In addition, there is a new resource in the blogosphere for ACA litigation aficionados: Bloomberg's Health Care at the High Court. It is worth a perusal.

Finally, I am still looking for the Court-appointed amicus Robert A. Long's reply brief on the Anti-Injunction Act issue. I will post a copy as soon as I find one.

T minus thirteen days and counting!

States file reply brief on Medicaid question

You can access it here.

Two briefs due today

Two briefs are due today, from different parties on different issues.

* The states' reply brief is due in Florida v. HHS (No. 11-400), addressing the constitutionality of the ACA's Medicaid expansion.

* The reply brief of the Court-appointed amicus (Mr. Robert A. Long, Jr.) is due in HHS v. Florida (No. 11-398), addressing the applicability of the Anti-Injunction Act.

I will post those briefs here as soon as I come across them.

Two weeks and counting: let the previews begin

We are now inside 14 days until the start of arguments, and the major media outlet previews have already begun. Today, Adam Liptak of the New York Times has this front-page article, which focuses on Chief Justice Roberts. Liptak's essential thesis is that the Chief will almost certainly be in the majority, regardless of the outcome. Interestingly, he writes that while the Chief could be part of a 5-4 majority to invalidate the ACA, he would only join a majority to uphold it if another Republican appointee were with him:

"The consensus among scholars and Supreme Court practitioners is that Chief Justice Roberts is unlikely to add the fifth vote to those of the four justices in the court’s liberal wing to uphold the law. But he is said to be quite likely to provide a sixth vote should one of the other more conservative justices decide to join the court’s four more liberal members."

I, too, tend to think the Chief is the swing vote. But I also think it possible Roberts might join the four Democratic appointees to uphold the Act with a 5-4 majority.


Also of note in today's Times is this op-ed from Fourth Circuit Judge J. Harvie Wilkinson, an esteemed jurist who came close to being nominated for the Court on a couple of occasions. As relevant to the ACA, Wilkinson opines that 

"[i]t is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one."

Why the Anti-Injunction Act may not be an attractive "out" for the Court

Two weeks from tomorrow, the Court will hear argument on the Anti-Injunction Act issue in HHS v. Florida (No. 11-398). And as we approach the upcoming arguments, I hope to post a series of short essays on the cases--though at this point, it is pretty difficult to conjure anything that has not been said, many times over.

The issue I want to explore briefly here is why the Anti-Injunction Act may not be an especially attractive way for the justices to duck the merits. Many (including myself) have said that the Court may find the AIA a handy way to punt the matter for the time being. (Lyle Denniston recently suggested this at the National Press Club event.) The Court has often in its history held that it lacked jurisdiction in a case, ostensibly to avoid deciding a much larger, more controversial constitutional question on the merits. (Think of the recent pledge of allegiance case, where the Court creatively found that Michael Newdow lacked "prudential standing," or even Naim v. Naim, where the Court ducked a state law forbidding "miscegination" in the wake of Brown.) The AIA, many have speculated, could provide the Court a similar "out" here.

But there are a number of complications to resolving this case on purely jurisdictional grounds. Consider the following:

U.S. reply brief due today

The Solicitor General will be filing his reply brief today in HHS v. Florida (No. 11-398), on the minimum coverage provision. I will post a link to the brief as soon as I get the PDF.

UPDATE: I have yet to find a copy of the SG's reply brief. If anyone has one (and is willing to share), I would be much obliged (bjoondeph@scu.edu). Thanks!


Here it is: Reply Brief for Petitioners (Minimum Coverage Provision)

The coming week

The only brief due this week is the reply brief of the Solicitor General on the minimum coverage provision issue in HHS v. Florida (No. 11-398), which is due Wednesday. That will conclude the briefing on that issue, with oral argument to be heard March 27. The outstanding briefs on the three other issues are due next week (March 12 and 13).

Reply briefs concerning the Anti-Injunction Act

The parties have filed their reply briefs in HHS v. Florida (No. 11-398), addressing the Anti-Injunction Act issue. Here they are:

* The Solicitor General's Reply Brief for Petitioners (Anti-Injunction Act)

* Reply Brief for the State Respondents on the Anti-Injunction Act

* Reply Brief for Private Respondents on the Anti-Injunction Act

The briefing is now almost complete on this issue: the Court-appointed amicus's reply brief is due Monday, March 12. Argument on the issue will take place March 26.

Court-appointed amicus brief

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

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

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

Here they are so far (I will add to the list as I find more):

* Brief for the American Hospital Association et al. as Amici Curiae in Support of Respondents with Respect to Medicaid

* Brief of Amicus Curiae the Disability Rights Legal Center in Support of Respondents and in Favor of Affirming the Constitutionality of the Medicaid Expansion Provisions of the Affordable Care Act

* Brief of National Health Law Program, American Academy of Pediatrics, Association for Community Affiliated Plans, Easter Seals, Inc., National Association of County and City Health Officials, National Association of Local Boards of Health, National Council on Aging as Amicus Curiae in Support of Respondents (Suggesting Affirmance on the Medicaid Question)

* Brief of the States of Oregon, Vermont, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, and New York, and the Governor of Washington as Amici Curiae in Support of Respondents (Addressing Medicaid Expansion)

* Brief Amici Curiae of State Legislators from the Fifty States, the District of Columbia, and Puerto rico Supporting Respondents (Medicaid)

* Brief of David Satcher, M.D., Ph. D.; Alliance for Children and Families; American Association of People with Disabilities; American Association of University Women; Child Welfare League of America; Children's Defense Fund; the Education Trust; League of Women Voters; Methodist Healthcare Ministries; National Association of Girls and Women in Sport; National Council for Community Behavioral Healthcare; National Council on Independent Living; National Foster Parent Association; National Organization of State Associations for Children; North American Council on Adoptable Children; Paralyzed Veterans of America; Vet to Vet; Volunteers of America; Women's Sports Foundation; YWCA USA; and 59 Other Organizations as Amici Curiae in Support of Respondents

* Brief of Amici Curiae Health Law and Policy Scholars and Prescription Policy Choices in Support of Respondents on the Constitutional Validity of the Medicaid Expansion

* Brief of Services Employees International Union and Change to Win as Amici Curiae Supporting Respondents and Suggesting Affirmance on the Medicaid Issue

* 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 Respondents (Medicaid)

* Brief for National Minority AIDS Council; AMFAR, the Foundation for AIDS Research; HIV Medicine Association; National Alliance of State and Territorial AIDS Directors; and Treatment Access Expansion Project as Amici Curiae Supporting Respondents (Medicaid)

* Brief of Amici Curiae Submitted on Behalf of Faithful Reform in Health Care and the WISC Health Care Working Group in Support of Respondent's Position on Medicaid

* Brief of Amici Curiae the Leadership Conference on Civil and Human Rights, Asian American Legal Defense and Education Fund, National AIDS Housing Coalition, National Economic and Social Rights Initiative, National Health Care for the Homeless Council, National Law Center on Homelessness and Poverty, Poverty and Race Research Action Council, Urban Justice Center and Wild for Human Rights in Support of Respondents Regarding Medicaid Expansion

Video of the National Press Club event

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

Lo and behold, there are more:

(UPDATE: I now count 45 in support of the respondents on the minimum coverage provision, which means a total of 77 amicus briefs on that issue alone.)

* Brief of the State of Oklahoma as Amicus Curiae in Support of Respondents (Addressing Minimum-Coverage Provision)

* Brief of Thomas More Law Center, Jann Demars, John Ceci, Steven Hyder, and Salina Hyder as Amici Curiae in Support of Respondents (Minimum Coverage Provision)

* Brief of Amicus Curiae Egon Mittelmann, Esq. in Support of Respondents Mary Brown and Kaj Ahlburg on the Minimum Coverage Provision Issue, Supporting the Trial Court and Court of Appeals Decisions

* Brief of Amicus Curiae Foundation for Moral Law, in Support of Respondents, Addressing Minimum Coverage Provision

* Brief of Liberty Legal Foundation as Amicus Curiae in Support of Respondents (Minimum Coverage Provision)

* Brief of Amicus Curiae Stephen M. Trattner in Support of Respondents (Minimum Coverage Provision)

* Brief on Behalf of the 1851 Center for Constitutional Law as Amicus Curiae in support of Respondents (Minimum Coverage Provision)

* Brief of Former U.S. Department of Justice Officials as Amici Curiae in Support of Respondents (Minimum Coverage Provision)

* Amici Curiae Brief of the American Civil Rights Union, the Social Security Institute and the 10th Amendment Foundation, Inc. in Support of Respondents on Minimum Coverage

* Brief of Amicus Curiae American Catholic Lawyers Association, Inc., in Support of Respondents (Minimum Coverage Provision)

* Brief Amici Curiae of HSA Coalition, Inc. and the Constitution Defense Fund, a Project of Freedomworks Foundation in Support of Respondents (Minimum Coverage Provision)

More briefs due tomorrow

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!