Friday, October 22, 2010

The first bit of ACA litigation to reach the Supreme Court

As Lyle Denniston of SCOTUSblog reported on Wednesday, the first piece of ACA litigation has officially reached the Supreme Court. The plaintiffs in Baldwin v. Sebelius (a former California legislator and the Pacific Justice Institute) have filed a petition for a writ of certiorari at the Court, which the justices are scheduled to consider at their November 5 conference.

The Baldwin plaintiffs are challenging the minimum coverage provision, asserting that it exceeds Congress's enumerated powers. The United States District Court for the Southern District of California dismissed the complaint on the ground that the plaintiffs lacked standing, due principally to the fact that the mandate will not take effect until January 2014. Of course, the district courts in Virginia and Florida resolved the standing (or ripeness) question differently, thus there is clearly a split among the lower courts on this precise question. But the Supreme Court typically does not grant cert until there is a split among the Courts of Appeals (or state supreme courts).

The plaintiffs have filed an appeal in the Ninth Circuit, which has not yet set a briefing schedule. But they are hoping to expedite the process, and thus have filed a petition for cert directly in the Supreme Court (which you can find here). The United States has waived its right to respond.

On November 5, the Supreme Court essentially has two choices: (1) it can deny the petition, or (2) if it is interested at all, it can call for a response from the Solicitor General. I think the safe money is on the Court denying certiorari, as it is extraordinarily rare for the Court to grant cert before any court of appeal has even addressed the legal question at issue. But if the Court calls for the government to respond, it would be a strong signal that the justices are quite interested in jumping into the fray, and sooner rather than later.

UPDATE: It is most likely (though I have yet to confirm this) that it would only require the vote of one justice to call for the government to file a brief in opposition to the cert petition. Thus, if the Court does, in fact, ask for the views of the Solicitor General after its November 5 conference, it might not be as strong of a signal as I suggested. It would mean that at least one justice is very interested in jumping into the fray, but perhaps no more than that. (The votes on such matters are not made public.)