Wednesday, December 15, 2010

And the focus shifts to Pensacola . . .

The most intense week of news coverage for ACA-related litigation will only become more heavily so tomorrow, as Judge Roger Vinson (N.D. Fla.) will hold a hearing on the parties' respective motions for summary judgment in Florida v. HHS. As with Judge Hudson's decision Monday in Virginia v. Sebelius, what Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo.

But there is clearly a political dimension to these district court rulings that is quite important. Namely, the more federal judges who invalidate the ACA (or a substantial portion thereof), the more traction and legitimacy those arguments gain. This not only affects current political debates about modifications to the ACA, but it also alters the context in which the Supreme Court will ultimately decide the constitutional questions. In short, the atmospherics--though only atmospherics--are important.

The action in Florida warrants particularly careful attention, if only because I think it is probably the case most likely to be taken up by the Supreme Court. Why? Let me offer four reasons:

* The plaintiffs include 20 states--16 represented by attorneys general, 4 by governors--and thus has an institutional heft or prestige that the other cases do not. In the end, this is a case about federalism. So it makes sense to have the interests of the states (and as many as possible) in the case.

* There are also three individual plaintiffs in the case. And their claims of Article III standing to challenge the minimum coverage provision are arguably stronger than a state's (and thus Virginia's in Virginia v. Sebelius). This is the only case where there are both individual plaintiffs and state plaintiffs.

* It includes both colorable constitutional issues presented by the ACA: (1) whether the minimum coverage provision exceeds Congress's enumerated powers, and (2) whether the ACA's Medicaid amendments are effectively coercive, and thus effectively "commandeer" the states. Virginia v. Sebelius only presents the first question. Both are interesting questions, worthy of Supreme Court review in their own rights.

* Moreover, that two questions are presented in this case might ultimately offer the Supreme Court some degree of political cover. For reasons I have explained at length previously, I think it is quite unlikely that the Court will invalidate the ACA's Medicaid provisions. Thus, this case would give the Court the chance to uphold one important aspect of the ACA (the Medicaid provisions) while invalidating another (the individual mandate). And this might offer the justices a means to make their ultimate decision appear less ideological--or so they might think.

In many respects, the most interesting news from tomorrow will be what, if anything, Judge Vinson says about the severability of 1501(b) or the appropriate remedy (if he finds part of the ACA unconstitutional). The parties have said very little about these issues in the papers, and Judge Vinson's October ruling gives no indication of how he might be thinking on these issues.

We will know much more by this time tomorrow.