Friday, June 17, 2011

Challengers file brief in Kinder v. Geithner

As we wait for decisions from the Fourth, Sixth, and Eleventh Circuits, and for more briefing in Seven-Sky v. Holder, it has become a bit slow along the ACA litigation front. Alas, there is one news item from the week worth mentioning: the plaintiff-appellants have filed their brief at the Eighth Circuit in Kinder v. Geithner. You can access that brief here.

You may recall that the District Court in this case (Judge Rodney W. Sippel, E.D. Mo.) held that it lacked subject matter jurisdiction because none the plaintiffs had standing to raise their various claims. The lead plaintiff is Peter Kinder, the Lieutenant Governor of the State of Missouri, and the complaint makes several allegations as to how Missouri is injured by the ACA. But the court found that Kinder lacked any litigating authority under Missouri law to raise these claims, and that neither Kinder (nor any of the other individual plaintiffs in the case) had sufficiently alleged facts showing an injury caused by the Act suffered in their personal capacities. (The reasoning of the court's decision, whether right or wrong, is thus unaffected by the Supreme Court's decision yesterday in Bond v. United States.) You can read the district court's opinion dismissing the plaintiffs' complaint here.

Because the district court never reached the merits, it seems unlikely that the Eighth Circuit would do so on appeal. Still, the challengers have devoted 30 pages of their brief to arguing that the minimum essential coverage provision exceeds Congress's enumerated powers.

The United States's brief in this case is due July 13.