Tuesday, May 31, 2011

On to Cincinnati

As if you need reminding, oral argument will take place tomorrow afternoon before the Sixth Circuit in Thomas More Law Center v. Obama. The argument is set to begin at 1:30 p.m. local time (EDT). As the Sixth Circuit's web site explains, audio of the argument should be available (for streaming or download) on the court's web site (which you can access here) roughly an hour after the argument has ended.

What to look for? We have been down this road before. Of course, there are the usual suspects: How much does the panel probe the activity-inactivity distinction? How hard do the judges push General Katyal for a limiting principle? Which market do the judges appear to accept the minimum coverage provision regulates--the health insurance market, or the health care services market?

In light of all the supplemental briefing in the past week, though, the focus may be on justiciability and quasi-justiciability questions. Have any of the plaintiffs established an injury in fact that, if not actual, is at least imminent? To what degree does it matter whether the plaintiffs are currently insured? Does it matter that the plaintiffs' basic argument for standing would essentially mean that anyone potentially subject to the mandate in 2014 would also have standing? Does this raise separate prudential standing questions, if not questions under Article III? To what extent does it matter whether this is a facial or as-applied challenge? (And what is the difference in this sort of a case, anyway?)

In particular, it will be interesting to see how focused Judge Sutton is on the justiciability issues. One might presume that Judge Martin is more likely than not to uphold the minimum coverage requirement, at least if the court reaches the question. But if Judge Sutton is troubled by the standing questions, or by the posture of the case as a facial challenge, one could easily foresee a pan-ideological consensus around the idea of kicking the case on jurisdictional (or quasi-jurisdictional) grounds, without the panel ever reaching the ACA's constitutionality.

And if that happens--in light of what may be happening in the Fourth Circuit's deliberations--the only case left standing (so to speak) with a good chance of reaching the Supreme Court next term might be Florida v. HHS.