A fall calendar of events

For those of you making travel plans and organizing kids' birthday parties around the ACA litigation, here are the dates to keep in mind for the rest of 2010:

October 4: Party reply briefs and amicus curiae briefs due in Virginia v. Sebelius.

October 14: Likely date on which Judge Vinson issues his decision on the United States's motion to dismiss in Florida v. HHS.

October 18: Hearing on the competing motions to dismiss in Virginia v. Sebelius, 9:00 a.m. in Richmond, Virginia, before Judge Hudson.

November 4: Motions for summary judgment due in Florida v. HHS.

November 17: Rough date on which to expect a ruling in Virginia v. Sebelius on the motions for summary judgment? (If the "rocket docket" expectation is 30 days from argument, this would be the date.)

UPDATE: Judge Hudson stated at the October 18 hearing that he expects to rule on the motions "by the end of the year."

November 23: Memoranda in response to motions for summary judgment due in Florida v. HHS.

December 6: Party reply briefs due in Florida v. HHS.

December 18: Hearing on motions for summary judgment in Florida v. HHS, in Pensacola, Florida, before Judge Vinson.

No word yet on whether DirecTV will offer a special "ACA litigation mix" channel where viewers can tune into commentary on the proceedings from multiple networks simultaneously.

And where we are in Florida

As was widely reported in the media, the hering before Judge Vinson on the United States' motion to dismiss took place on September 14. (Unfortunately, the transcript of that hearing is only available through a terminal at the courthouse in Pensacola, or by purchasing it from the transcription service. It will not be available through PACER until December 27.) The motion to dismiss is now pending, though Judge Vinson strongly suggested that he is inclined to deny the motion and let the case proceed, at least to the stage of summary judgment.

On September 15, Judge Vinson issued the following scheduling order, applicable if the court denies the motion to dismiss:

A. I will enter my written order on the defendants’ motion to dismiss on or before October 14, 2010. Assuming the case survives dismissal in whole or in part, the parties have until November 4th in which to move for summary judgment (and the defendants may file their answer at the same time); the opposing party will have until November 23rd to respond; and the moving party will have until December 6th to file any reply.

B. As provided in the original Final Scheduling Order, the briefing with regard to the motions discussed above will be limited to fifty (50) pages for the initial and responsive briefs, and twenty-five (25) pages for reply briefs.

C. Hearing and oral argument on the motion(s) for summary judgment will held on Thursday, December 16, 2010, beginning at 9:00 a.m. (CST). Both sides will be allowed one (1) hour for argument.

Thus, we are currently on schedule -- in very rough terms -- to have these cases before the Fourth and Eleventh Circuits in the spring and summer of 2011. How long it will take those courts to resolve the questions presented -- and which questions will actually be presented at that point -- is much harder to predict.

Regardless, barring something unforeseen, we are still a long way from any of these questions reaching the Supreme Court.

Where things stand (in the Eastern District of Virginia)

Just an update on where we are at this point in the Virginia litigation.

This past Thursday, the Commonwealth of Virginia and the United States filed their respective memoranda in opposition to the other's motion for summary judgment. Those memos are available for download on PACER, and I should have copies available here shortly.

The parties' reply briefs, if they choose to file them, are due next Monday, October 4. All amicus curiae briefs are also due by October 4.

To my knowledge, the court has yet to set a date for a hearing on the competing motions for summary judgment.

UPDATE: I now see the docket entry (dated September 7) which sets the motions hearing for Monday, October 18, at 9:00 EDT, before Judge Hudson.

Barnett's Hayek Lecture

First, apologies for being away from the blog for the last three weeks. (Alas, classes take a little time to teach. And, well, I'm actually supposed to work for my salary. Who knew?)

Second, Randy Barnett will be delivering his Hayek lecture at NYU October 14, and he has posted his address on SSRN. The title? Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional. You can find it here. In my quite humble opinion, it is the most eloquent, well-reasoned argument yet articulated as to why the individual mandate is unconstitutional.

That is not to say that I agree with its conclusions, but it is definitely worth a read.

Motions for summary judgment in Virginia v. Sebelius

You can find Virginia's memorandum in support of summary judgments here, and the United States's memorandum in support of summary judgments here. After all that we have heard to this point, there is not much terribly new in either brief. I hope to have some comments up about them at some point this weekend.

U.S. reply in Florida v. H.H.S.

The United States has filed its reply to the states' memorandum in opposition to the motion to dismiss, which you can find here. Again, oral argument on the United States' motion to dismiss the states' complaint is scheduled for 10:00 a.m. on Tuesday, September 14, in Pensacola, before Senior United States District Judge Roger Vinson.

Florida nullification ballot initiative invalidated

This is a couple of days old, but the Florida Supreme Court on Tuesday invalidated a proposed Florida ballot initiative that would have made it illegal for any Florida resident to be required to purchase health insurance. The court did so for reasons having nothing to do with the ACA or the Constitution, but because the langauge of the initiative was "misleading and ambiguous," and thus invalid as a matter of Florida law.

You will recall that Missouri voters approved a similar initiative last month (71 to 29 percent!). And it was a similar provision enacted by the Virginia legislature that essentially led the District Court to conclude, in Virginia v. Sebelius, that Virginia has standing to challenge the constitutionality of the minimum coverage requirement. Arizona, Oklahoma, and Colorado will have similar initiatives on the ballot in November.

This all could lead to some catchy slogans.

"Nullification fever . . . catch it!"

Or, to paraphrase his purpleness: "Two thousand zero zero party over, oops out of time/tonight we're going to party like it's . . . 1832!"

Introduction to an article

I'm currently working on an academic article encapsulating the discussions here so far, tentatively titled "Federalism and Health Care Reform: Understanding the States' Challenges to the Affordable Care Act." I thought it possible some readers might be interested. And (selfishly) I even thought it possible that someone might be willing to offer me some constructive feedback (at bjoondeph@scu.edu).

So here is a draft of the introduction. And if you have any thoughts, please send them my way. Thanks!

Introduction

On March 23, 2010, President Obama signed into law Public Law 111–148, better known as the Patient Protection and Affordable Care Act (or the ACA).1  Whatever its merits as a matter of policy, it was a historic legislative achievement.  No prior administration had successfully pushed national health reform through Congress, despite several attempts, and Obama had largely staked his presidency on the legislation’s passage.  Understandably, the mood in the Rose Garden at the Act’s signing ceremony was festive, even raucous.

Not all Americans were as excited as the President.  Within hours, the attorney general of Virginia filed suit in federal court claiming that the ACA is unconstitutional.  The attorneys general of twelve other states (since joined by seven more) filed a similar action that same day, also contending that the ACA is unconstitutional.  Both lawsuits are currently winding their way through the lower federal courts, and one or both seem likely to reach the Supreme Court.

Motions for summary judgment due tomorrow in Virginia

Pursuant to the District Court's consent order of August 10, the parties' respective motions for summary judgment (and supporting memoranda) are due tomorrow, September 3. The memos in support of the motions are limited to 45 pages. The parties then have until September 23 to file their respective memoranda in response to the motions for summary judgment, and they, too, are limited to 45 pages. Reply memoranda (limited to 20 pages) are due October 4, as are all amicus curiae briefs.

I will post the motions for summary judgment (really, the supporting memos) here just as soon as I find them.

A small disagreement with Barnett as to what is "unprecedented"

In his post today at the Volokh Conspiracy, which responds to Gerald Magliocca's post at Concurring Opinions, Randy Barnett makes the following point (quoting a Wall Street Journal article in which Barnett is quoted):

"Such a mandate is unprecedented: 'This is the first time in American history that Congress has claimed to use its power over interstate commerce to mandate, or require, that every person enter into a commercial relationship with a private company,' Mr. Barnett notes. 'As a judicial matter, it’s also unprecedented. There’s never been a court case which said Congress can do this.'"

Fair enough. I have not combed the Statutes at Large or the United States Reports personally to verify that these statements are uncontrovertably true. But I have no reason to doubt Professor Barnett on either point. He is an esteemed professor at Georgetown, very smart, and well versed in these fields of constitutional law. Further, he is a personal acquaintance of mine, whom I have always found to be thoughtful and open-minded.

But the next move Barnett makes in his argument, I think, is subject to question. Specifically, he pivots from the "unprecedented" nature of the ACA's insurance mandate to make the following argument:

"[D]ue to the now-concededly unprecedented nature of this claim of power, ANY constitutional theory adopted by the Supreme Court will be a novel one. Any doctrine UPHOLDING Congress’s power to impose a mandate either as an exercise of its Commerce Power or as a necessary and proper means to regulating interstate commerce will be new. For this reason, defenders of the mandate cannot complain about the novelty of a theory opposing the constitutionality of the mandate because ALL theories about so unprecedented an exercise of power will necessarily be new and novel."

Here, I think, we have a subtle sleight of hand, at least in one important sense.

To say that Congress has never before used its commerce power (as augmented by the Necessary and Proper Clause) to require individuals to engage in a commercial transaction with a private party is not to say that a new constitutional theory is necessary to uphold that particular use of the power. Rather, it is perfectly plausible to argue that it is merely a new ("unprecedented") application of a well-established (even deeply entrenched) constitutional theory: that Congress can regulate any conduct (whether described as activity or inactivity) when doing so is necessary (in Congress's view, so long as that view is reasonable) to the effective operation of a broader regulatory scheme, which scheme plainly regulates an interstate commercial market (in this case, the market for health insurance). That "constitutional theory" dates at least to Wickard v. Filburn, and perhaps much further back. It is not novel, even if the particular application of the theory as manifested in ACA section 1501 might be.

My larger point is that that what counts as a "theory" and what counts as an "application" of that theory is in the eye of the beholder. I understand Barnett's perspective, and I think it is a completely viable argument. Arguing that a new constitutional theory--an unprecedented "extension" of Congress's enumerated powers--is necessary to uphold the minimum coverage provision--is certainly a helpful frame to those arguing that the Act is unconstitutional.

But unlike the claim that Congress has never enacted a statute requiring individuals to purchase something in a private market (which I'm willing to assume is true), the claim that "a novel theory of constitutional law" is necessary to uphold the Act is unfalsifiable. And those who think 1501 is constitutional, in conceding the former, have not conceded the latter. They are different points. 

In short, what qualifies as an unprecedented extension of Congress's enumerated powers, as opposed to a straightforward application of existing law to a somewhat novel factual setting, depends entirely on who you ask. These are qualitative judgments, not provable facts. And, in this particular case, I think both perspectives are defensible.

Magliocca and Barnett on "unprecedentedness"

I should point out two interesting posts in the past 24 hours on the significance of the minimum coverage provision (ACA section 1501) being "unprecedented." Randy Barnett has been arguing (for about a year now) that the regulation of non-action--commanding persons into private transactions--would be an "unprecedented" use of the commerce or taxing powers. (See here, for example.) Gerald Magliocca points out here that the distinction Barnett is trying to draw, between regulating private action and mandating certain actions, is equally "unprecedented." Barnett responds thoughtfully here. Both posts are worth a careful read. 

The minimum coverage provision and the taxing power (part 2)

In my prior post, I outlined why I think current law tilts heavily against the states in their claim that the minimum coverage requirement falls outside Congress’s taxing power. Congress has placed ACA §1501 in the Internal Revenue Code; it is enforceable only through the typical means of tax collection; it will raise more than “negligible” amounts of revenue; and Congress had a reasonable (and arguably a strong) basis for concluding that §1501 will promote the “general welfare.” Under governing precedent, and under normal circumstances, that should be enough.

But these cases are anything but garden variety. They are the types of cases, with strong ideological and partisan undercurrents, in which doctrine tends to hold less sway. Stated differently, this is the sort of issue where a judge’s deeply held beliefs are more apt than usual to shade his reading of doctrine. Cf. Lawrence v. Texas and Bush v. Gore.

As a result, I think as important as the best reading of precedent—indeed, more important—are all the plausible readings of precedent. More concretely, is current law sufficiently ambiguous or flexible that five justices of the Supreme Court could hold that the minimum coverage provision exceeds Congress’s taxing power, and is thus unconstitutional (assuming, of course, it also exceeds the commerce power)?

I think the answer is yes.

The minimum coverage provision and the taxing power (part 1)

The one substantive issue in the litigation that we have yet to address here is the question whether the minimum coverage requirement of ACA §1501 fits within Congress’s taxing power (which is grounded in the General Welfare Clause of Article I, §8, clause 1). To recap, to prevail on their claim that §1501 exceeds Congress’s enumerated powers, the states must show both (a) that it exceeds Congress’s power to regulate interstate commerce, and (b) that it is invalid as a taxing measure, either because it exceeds Congress’s authority to tax or because, although it is within that power, it constitutes a “direct” tax that has not been apportioned according to each state’s population.

As I have written earlier, I think there is a decent argument—though not one I necessarily agree with—that §1501 exceeds Congress’s commerce power. More specifically, I think it would be relatively easy to write a judicial opinion, using current doctrine, to reach that result. Holding that §1501 exceeds Congress’s taxing power, though, would seem to be more challenging. Let me explain why.

Reading the tea leaves: Why I think Judge Hudson will declare the ACA unconstitutional

Judge Hudson's ruling last week denying the United States's motion to dismiss Virginia's complaint was technically no more than that -- a refusal to conclude that Virginia had failed to advance a legally viable cause of action. (I'm setting aside the standing question here, which still befuddles me.) In other words, Judge Hudson held no more than that Virginia's claims were plausible. His opinion, though, shed some important light on how he is apt to decide the case once we have motions for summary judgment.

What are the clues?

Catching up on the week that was

This is relatively old news by now, but I thought I should cover the highlights from last week (while I was in Chicago on vacation):

* On Monday, of course, Judge Hudson issued his opinion denying the United States's motion to dismiss Virginia's lawsuit. You can find the opinion here.

* On Tuesday, Missouri voters overwhelmingly approved Proposition C, which (like the Virginia Health Care Freedom Act) purports to make it illegal, as a matter of state law, for Missouri citizens to be required to purchase health insurance. Here is coverage from the New York Times.

* On Friday, the 20 states in the Florida lawsuit filed their memorandum opposing the United States's motion to dismiss. You can find their filing here.

* The NPR program Weekend Edition Saturday featured this story on the states' lawsuits.

* The NPR program Weekend Edition Sunday featured this interview with Virginia Attorney General Ken Cuccinelli.

* Over the weekend, several esteemed panelists who have been involved in the ACA litigation (Randy Barnett, Jack Balkin, David Kopel, and Gilian Metzger) discussed the constitutionality of the minimum coverage requirement at a Federalist Society event. An audio recording of the event is available here.

More on Virginia's standing (or the lack thereof)

As I have written in prior posts, I think there is plenty of room in the currently governing Commerce Clause doctrine to hold that the minimum coverage requirement (or individual mandate) embodied in ACA §1501 exceeds Congress’s commerce power. I also think that current law governing Congress’s taxing power—if only because it is so sparse—would permit a court to hold, on the merits, that §1501 is unconstitutional. So this part of Judge Hudson’s opinion (pp. 14–31), though I do not necessarily agree with it, seems eminently defensible.

What still gives me pause is Judge Hudson’s conclusion that the Commonwealth of Virginia has Article III standing to challenge the constitutionality of §1501 because its legislature enacted the “Health Care Freedom Act,” which does no more than declare that no Virginia citizen can be forced to purchase health insurance (except for in certain narrow circumstances). The existence of the Virginia law is enough to create standing, Judge Hudson reasoned, because a state has a “right to create and enforce its own legal code.”

Most of the time, when I think an idea is clearly wrong, it is because I have missed something. I have been too quick to dismiss something out of hand. Thus, that probably remains the best explanation here. Nevertheless, after a week of reflection, I am still left thinking that Judge Hudson's standing analysis cannot possibly be right.

Really?

First, if there is anyone who has yet to read it, here is today's ruling from Judge Hudson denying the United States's motion to dismiss. I'm on a family vacation, so I'm just sitting down to read the opinion now. So far, I've only read the standing analysis (and I have not read any of the commentary, which will probably explain why I'm completely misguided). But my reaction is . . . really?

The implications of the standing analysis seem startling. Its logic dictates that, following the enactment of any federal law, a state legislature could enact a statute declaring that the federal law has no effect within its borders. The state would then have an injury to its sovereignty created by the "conflict" between the federal and state law--which prevents the state from "enforcing" its law (though it is unclear how such a law could really be enforced)--that entitles the state to pursue its action in federal court.

States arguably should have standing to sue the federal government to determine whether a state law is preempted in particular circumstances--specifically, when the existence of the federal law jeopardizes the legality of the actual or imminent enforcement of a state law. For instance, if California makes it unlawful to generate a certain level of greenhouse gases, and a federal law arguably preempts the state law, the state plausibly is entitled to seek declaratory relief to determine whether the enforcement of the state law is permissible (i.e., not preempted), at least when the state is actually committing (or about to commit) significant resources to its state-level enforcement regime.

Here, though, there is no sincere (or realistic) desire by Virginia to "enforce" anything. (The ACA may be forcing Virginia to carry out certain actions already related to Medicaid, but those actions are wholly unrelated to the minimum coverage requirement of ACA 1501 that the Commonwealth is challenging.) Virginia's law, as a transparent attempt to nullify a federal statute, was legally invalid at its inception. It purports to direct the federal government on how it can regulate the citizens of Virginia. This is constitutionally inadmissible. Or at least it has been since 1865.

So I'm at a a loss to understand how the existence of Virginia's Health Care Freedom Act is somehow relevant--let alone sufficient--to grant the Commonwealth standing. I'm sort of stupefied.

The Commerce Clause, part 2: what the Supreme Court might do

As my previous post attempted to explain, both of the principal arguments as to why the ACA’s “minimum essential coverage requirement” (§1501) exceeds Congress’s commerce power concern the breadth of Congress’s authority to select appropriate means for regulating interstate commerce. One argument is that, although Congress can sometimes regulate non-commercial intrastate activity when necessary to a broader regulatory scheme (which scheme regulates interstate commerce), that authority does not extend to the regulation of inactivity. In other words, there is a fundamental distinction between activity and inactivity for purposes of the Commerce Clause, regardless of either’s impact on interstate commerce. A second (and very similar) argument is that, no matter the necessity of regulating a given activity (or inactivity) as part of a broader regulatory scheme, it is never “proper” to coerce individuals into a commercial transaction with a private third party as a regulation of interstate commerce. No matter the connection to interstate commerce, this means is qualitatively out of bounds under the Constitution.

Is either a sound argument? Sure, at least if what we mean by soundness is that it has a decent chance of success at the Supreme Court. Governing Commerce Clause doctrine would certainly permit either holding. As Randy Barnett has stated a few times, §1501’s attempt to mandate a commercial transaction is, at least in some sense, “unprecedented.” It would be relatively easy for the Court to write an opinion limiting the reasoning of Raich v. Gonzales to instances in which Congress was regulating activity (albeit non-commercial, intrastate activity) and was not forcing people to engage in a commercial transaction. I’m not saying that it would be the best reading of precedent, but it is clearly a plausible and defensible one.

(One problem for the Court doctrinally would be to explain why it is okay for the government to mandate or coerce other actions in pursuit of its enumerated powers—such requiring persons to be vaccinated, to file an income tax return, or to register for the draft—but not to acquire health insurance. Another problem would be to defend conceptually the action-inaction distinction: Couldn't one describe the Civil Rights Act, in some sense, as mandating that persons employ or serve people who apply for jobs or show up as customers at a public accommodation—that is, engage in a commercial transaction with a private third party? I think the Court could deal with these issues, but they are not insignificant.)

Given that current law would permit the justices to find that §1501 exceeds Congress’s commerce power, how likely are they to so hold?

Is today the day in Richmond?

Oral argument on the United States' motion to dismiss in Virginia v. Sebelius took place on July 1, 29 days ago. As a general rule, the District Court for the Eastern District of Virginia disposes of such motions within 30 days (as part of its civil litigation "rocket docket"). Of course, this is not exactly the ordinary case, so perhaps the normal rules should be suspended. But the court has 90 minutes left to meet this implicit deadline. (I just checked the docket sheet in PACER, and there was no entry indicating when the court might issue its decision.)

The commerce power and the “requirment to maintain minimum essential coverage”

The provision of the ACA that has generated the most controversy thus far, and which is the most vulnerable constitutionally, is § 1501, the “requirement to maintain minimum essential coverage.” The principal argument against its constitutionality is that it exceeds the powers granted to Congress under Article I. In particular, the states have presented two arguments: (1) that it exceeds both the commerce power and the taxing power (as augmented by the Necessary and Proper Clause); and (2) that even if it falls within the taxing power (but still exceeds the commerce power), it is unconstitutional because it is an unapportioned “direct” tax (in violation of Article I, §§4 and 9). Here, I attempt to analyze the Commerce Clause question, a necessary component of either argument.