Monday, May 16, 2011

Interesting development in Thomas More Law Center v. Obama

There has been a rather interesting development in Thomas More Law Center v. Obama, the case originating in the Eastern District of Michigan that will be argued before the Sixth Circuit on Wednesday, June 1. On Thursday afternoon, the clerk of the court sent the following letter to the parties' attorneys:
Dear Counsel:
I write at the direction of the panel to which the appeal noted above is to be argued on Wednesday afternoon, June 1, 2011. The court asks that you submit letter briefs of not more than ten pages, addressing the following questions: 
1. Standing/Ripeness. 
a. Have the plaintiffs alleged an injury in fact? If not, have they alleged an “imminent injury” creating a case of actual controversy under Article III and the Declaratory Judgment Act, even though they filed their complaint more than three years before the effective date of the challenged provisions? 
b. If the plaintiffs do not purchase minimum essential coverage and do not pay the penalty, what available enforcement mechanisms are available to the IRS? What role, if any, do IRS enforcement mechanisms play in the injury and hardship requirements? 
2. Facial/As-applied. 
Is the Commerce Clause challenge a facial challenge and, if so, must the plaintiffs prove “that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987)? 
Your letter briefs are to be filed not later than May 23, 2011. Thanking you for your attention to this request, I am 
Very truly yours,
Leonard Green, Clerk
What to make of this? First, it appears that the panel has some qualms about standing--particularly, as to whether the current injury (such as having to set aside funds for the future purchase of health insurance) is sufficiently "concrete and particularized," or that, if the injury is having to purchase health insurance in the future, it is at least "imminent." Part of the complication, it appears, is that there may be no guarantee (perhaps) that the IRS will actually take action against them--or at least that is what the panel is interested in probing. All of this suggests, of course, that the panel might be looking for a way to resolve the case that avoids reaching the merits.

As to the second question, it makes me grab my head in pain. Is there anyone on the planet who can really explain the facial/as-applied distinction in the context of lawsuits challenging federal laws as exceeding Congress's enumerated powers? I had always assumed that, by their very nature, such claims were facial in the relevant sense (though cases like Raich arguably involve a facial challenge to a particular class of applications). Then the Supreme Court decided Tennessee v. Lane, and I have been hopelessly confused ever since. So perhaps there can be as-applied challenges in certain circumstances (though I do not hazard a guess as to what, exactly, defines those circumstances).

Again, the desire to have the Salerno question briefed seems to suggest that the panel might be looking for a means, other than reaching the merits, to make the case go away. And that would shift a few more eggs into the Florida v. HHS basket.

You can find the letter here. And the letter briefs are due a week from today.