Thursday, November 3, 2011

Response due in Virginia v. Sebelius

The response of the United States (which most likely will be a brief in opposition to certiorari) is due today in Virginia v. Sebelius (No. 11-420). I fully anticipate that the government will argue that the case does not warrant review, as (1) the Fourth Circuit did not reach the merits, and (2) the issue the Fourth Circuit did reach--whether Virginia has standing to challenge the minimum coverage provision based on its enactment of its Health Care Freedom Act--is unnecessary for the Court to resolve in order to address the ACA's constitutionality (and is arguably a question on which there is no split of authority). In other words, whether Virginia has standing is, at this point, largely a sideshow. For even if the Anti-Injunction Act deprives the Court of jurisdiction in the actions brought by the private plaintiffs, the Florida case already would present the state standing issue (as several of those states have comparable "health care freedom" laws).

I will post a copy of the government's brief (assuming it is filed today) as soon as I can find it.