District Court opinion in U.S. Citizens Association v. Sebelius

Judge David Dowd, Jr. (United States District Court for the Northern District of Ohio) issued an opinion today denying in part and granting in part the United States's motion to dismiss the constitutional challenge to the ACA brought by the U.S. Citizens Association. You can find the opinion here.

The complaint made four claims: (1) that the minimum coverage provision exceeds Congress's enumerated powers; (2) that the ACA violates the individual rights to expressive and intimate association; (3) that the ACA deprives them of liberty without due process of law; and (4) that the ACA violates their constitutional right to privacy. There are four essential elements to today's decision from Judge Dowd:

* The plaintiffs' have standing to claim that the minimum coverage provision is unconstitutional, and their claim is ripe. (In other words, their alleged injury is sufficiently imminent to constitute an injury in fact for purposes of Article III.)

* The Anti-Injunction Act does not deprive the court of jurisdiction (essentially because ACA 1501(b) is not a genuine tax).

* The plaintiffs' claim that the minimum coverage provision exceeds Congress's enumerated powers is sufficient "at this point to pass the 'plausibility' teachings of Twombly and Iqbal." (Op. at 10)

* The plaintiffs' claims concerning the right of association, the deprivation of due process, and the right to privacy are not plausible as a matter of law, and thus are dismissed pursuant to F.R.C.P. 12(b)(6).

This is now the fifth federal district court to rule in some way in the various ACA lawsuits. Three courts (this one, the Eastern District of Virginia, and the Northern District of Florida) have held that the claim that the minimum coverage provision exceeds Congress's enumerated powers is sufficiently plausible to survive a 12(b)(6) motion to dismiss. One court (the Eastern District of Michigan) has held that it is not. And one court (the Southern District of California) did not reach the issue but instead dismissed the claim on standing grounds.

This case now proceeds to motions for summary judgment, limited to the question of whether the minimum coverage provision exceeds Congress's enumerated powers.

Complete set of amicus briefs in Florida v. HHS

I believe all of the amicus curiae briefs filed this week in Florida v. HHS are now available for download in the righthand column of this page. (And please let me know if I have missed one.)

The parties' next round of briefing is due Tuesday, November 23.

Three more amicus briefs filed in Florida v. HHS

The District Court for the Northern District of Florida has just docketed three more amicus curiae briefs in Florida v. HHS. One was filed by the Family Research Council (available here) in support of the states. Two are in support of the United States: one filed by the American Nurses Association (available here) and one by a group of economic scholars (available here). The point of the economic scholars' brief (which includes a rather impressive list of economists, including three Nobel laureates) is to explain why the decision whether to purchase health insurance is not "passive inactivity" but an "economic decision" with significant effects on interstate commerce, and that the market for health insurance is economically unique, such that upholding the minimum coverage provision would not open the door to Congress mandating the purchase of all sorts of goods and services as means to regulating interstate commerce.

Amicus brief filed by 63 members of the House

Sixty-three members of the United States House of Representatives, along with the American Center for Law and Justice and the Constitutional Committee to Challenge the President and Congress on Health Care, have filed an amicus brief in support of the states in Florida v. HHS, which you can find here. The brief argues (1) that the minimum coverage provision exceeds Congress's enumerated powers, and (2) section 1501(b) is not severable from the rest of the Act, such that the court should declare the entire ACA unconstitutional. Like the other amicus briefs on plaintiffs' side filed thus far, the brief does not address the Medicaid issue.

Republican Senators file amicus brief in Florida v. HHS

A group of 32 Republican Senators today filed an amicus brief in support of the states in Florida v. HHS. You can find the brief here. The Senators signing onto the brief are Mitch McConnell, Orrin Hatch, John Barrasso, Kit Bond, Sam Brownback, Jim Bunning, Richard Burr, Saxby Chambliss, Tom Coburn, Thad Cochran, Susan Collins, Bob Corker, John Cornyn, Mike Crapo, Jim DeMint, John Ensign, Mike Enzi, Chuck Grassley, Kay Bailey Hutchison, James Inhofe, Johnny Isakson, Mike Johanns, Jon Kyl, George LeMieux, John McCain, James Risch, Pat Roberts, Richard Shelby, Olympia Snowe, John Thune, David Vitter, and Roger Wicker.

Like John Boehner, the Senators only argue that the minimum coverage requirement exceeds Congress's enumerated powers. They do not address the commandeering question with respect to the ACA's Medicaid amendments.

Ninth Circuit briefing schedule in Baldwin v. Sebelius

The Ninth Circuit recently set down its briefing schedule for Baldwin v. Sebelius, the case in which the Supreme Court recently denied a petition for a writ of certiorari. Although the Ninth Circuit might rule sooner in this case than the Sixth Circuit does in Thomas More Law Center, Baldwin is still further back in the pipeline (as to the merits) because the District Court dismissed the complaint in Baldwin on the ground that the plaintiffs lacked standing. Thus, the only issue on appeal will be justiciability. So even if the Ninth Circuit rules in favor of the plaintiffs, the case would presumably then go back to the District Court for a ruling on the merits, before then coming back to the Ninth Circuit (likely at least a year from now).

In any event, here is the briefing schedule in the Ninth Circuit:

* The appellants' opening brief is due November 29, 2010.

* The United States's answering brief is due 28 days after the filing of the opening brief, or December 27, 2010, whichever comes sooner.

* The appellants' reply brief is due 14 days after the United States's filing of its answering brief.

You can find the Ninth Circuit's scheduling order here.

Sixth Circuit briefing schedule set in Thomas More Law Center v. Obama

The ACA case that is currently the furthest along in the federal judicial pipeline is Thomas More Law Center v. Obama. You will recall that, back on October 21, District Court Judge George Steeh issued an opinion granting the United States's motion for summary judgment, upholding the minimum coverage provision as a valid exercise of Congress's authority to regulate interstate commerce. (You can find that opinion here.)

The Thomas More Law Center has filed its notice of appeal, and last week the United States Court of Appeals for the Sixth Circuit set down a briefing schedule for the case, which you can find here. The gist of it is as follows:

* The brief of appellant Thomas More Law Center is due December 15, 2010.

* The brief of appellee United States is due January 14, 2011.

* The reply brief of appellant Thomas More Law Center is due 14 days after the filing of the appellee's brief (thus, most likely January 28, 2011).

The Sixth Circuit will not set a date for oral argument in the case until after the principal briefs have been filed.

American Association of People with Disabilities amicus brief

Today, the American Association of People with Disabilities, joined by 12 other non-profit health-related organizations, filed a brief as amici curiae in Florida v. HHS in support of the United States's motion for summary judgment. You can find the brief here.

Boehner amicus brief filed

House Republican Leader (and soon-to-be Speaker of the House) John Boehner late yesterday filed his brief as amicus curiae in support of the plaintiffs' motion for summary judgment in Florida v. HHS. The brief is (as all the amicus filings in this case will be), well, brief. (The page limit is 15.) The gist of his argument is that the minimum coverage provision exceeds Congress's enumerated powers, and that the United States's "interpretation of the Necessary and Proper Clause would create incentives for Congress to pass ill-conceived or unrealistic statutes." He does not address the commandeering question presented by the ACA's Medicaid amendments.

You can find Representative Boehner's brief here.

Amicus briefs in Florida v. HHS due Friday

According to this article in the National Journal, the amicus curiae briefs that Judge Vinson gave parties leave to file this past Friday will be due this coming Friday, November 19, and are limited to 15 pages. We will post them all here as soon as they are available.

Leave to file amicus briefs in Florida v. HHS

Judge Vinson today granted several motions filed by parties interested in filing amicus curiae briefs in support of either the states or the United States in their motions for summary judgment. Here is a partial list the parties granted leave:

In support of the states:
* House Republican Leader John Boehner
* Senators Mitch McConnell, John Barrasso, John Cornyn, Saxby Chambliss, Orrin Hatch, James Risch, Pat Roberts, and Roger Wicker
* Governors Tim Pawlenty and Donald Carcieri
* The American Civil Rights Union
* Family Research Council

In support of the United States:
* The governors of Washington, Michigan, Colorado, and Pennsylvania
* The states of Oregon, Iowa, and Vermont
* A group of state legislators from the plaintiff states
* The American Hospital Association, Federation of American Hospitals, National Association of Public Hospitals and Health Systems, National Association of Children’s Hospitals, Catholic Health Association of the United States, and Association of American Medical Colleges
* A group of economics scholars
* The American Association of People with Disabilities

Cert denied

The Supreme Court denied the petition for a writ of certiorari this morning in Baldwin. So the next step for that case will instead be in the Ninth Circuit, some time in 2011.

UPDATE: As Lyle Denniston reports, it is notable that the Court's order denying cert did not note any recusals. This presumably means that Justice Kagan participated in the decision, and that she will not recuse when and if the issue ultimately reaches the Court on the merits.

Baldwin cert petition news on Monday

The Supreme Court yesterday, in some manner, considered the petition for a writ of certiorari filed by the plaintiff in Baldwin v. Sebelius, who, among other things, claims the ACA's minimum coverage provision exceeds Congress's enumerated powers. The District Court for the Southern District of California dismissed the complaint for want of jurisdiction on the ground that the plaintiff lacked standing. An appeal is pending in the Ninth Circuit, but the plaintiff is simultaneously seeking review in the Supreme Court (which, of course, would render the Ninth Circuit appeal moot). The Court will issue its order list from Friday's conference at 10:00 am EST Monday morning, at which point we should know some more about what the Court has done with the petition. It could (1) simply deny the petition, which seems most likely; (2) call for a response from the government (which waived its right to file a brief in opposition two weeks ago); or (3) re-list the petition, such that it will be considered at a future conference (to permit a justice, for instance, to write a dissent from or a statement regarding the Court's denial of certiorari). If the Court simply denies the petition, we will know that as soon as the Court releases its order list, shortly after 10:00 am Monday. If it calls for a response or re-lists the petition, we will not learn of this until the appropriate entry is added to the case's docket sheet (and I'm unsure how promptly this happens). In any event, there should be some sort of news Monday morning.

U.S. motion for summary judgment

The United States has indeed filed its motion for summary judgment in Florida v. HHS, which you can find here (as well as in the column to the right).

The states' motion for summary judgment in Florida

The states have filed their motion for summary judgment in Florida v. HHS, which you can find here (as well as in the column to the right). This is just the memorandum of law accompanying the motion; the states have also filed a statement material facts, as well as five volumes of attachments. Provided the expense is not prohibitive, I will post all of those here as well.

Unfortunately, I have been unable to locate the United States's motion for summary judgment. The docket report indicates that the United States today filed an "answer" to the states' amended complaint, which (unless I'm missing something) does not make sense. Regardless, the link to that document in PACER is not currently functioning. I will post a link to the United States's filing--whatever it is, exactly--as soon as I can find it.

The incoming Speaker and the election narrative

The speaker-in-waiting, John Boener, had this to say this morning concerning the ACA: "The American people have concerns about government takeover of health care. . . . I think it’s important for us to lay the groundwork before we begin to repeal this monstrosity." (The quote comes from this blog post in the New York Times.) And thus the effort to define the narrative of the midterms, as it concerns the ACA, begins in earnest. Again, if this sort of understanding or interpretation of the election takes hold, it will undoubtedly influence (at least at the margin) how judges approach the constitutional issues in the ACA litigation.

Motions for summary judgment due Thursday in Florida

This is just a reminder that the parties' motions for summary judgment are due by Thursday in the Northern District of Florida. We will have those motions posted here, with some analysis, as soon as they are available.

The importance of tomorrow

There certainly is a great deal at stake politically in tomorrow's midterm elections. It may also be that the constitutionality of the ACA hangs in the balance as well. Of course, nothing in a technical legal sense will be resolved tomorrow, even if a handful of states adopt "health care freedom" laws (which, as essentially nullification ordinances, have no legal significance). But the election results are apt to affect the outcome of the ACA litigation in two ways. First, there seems little doubt that the federal courts generally, and the Supreme Court in particular, are influenced by the views of the other powerful institutions in our constitutional system. Thus, if the House and Senate are controlled by majorities that are hostile to the ACA, that will leave judges greater room to rule in favor of the states. Second, and perhaps more important, if tomorrow is a landslide for Republicans, and the narrative that takes hold (particularly in elite circles) is that the Democrats lost power due largely to the ACA--for instance, if attention is paid to those House members who lost their seats allegedly because of that vote--then the election may well be seen, at least in large part, as a rejection of the ACA by the American people. To the extent this occurs--regardless of its accuracy as a matter of political science--it would create an environment in which it was far easier for the Supreme Court to invalidate the ACA. For it would reduce the degree to which the Court would be attacked politically for such a decision, increase the likelihood that such a decision would be supported by the public, and diffuse some of the media and academic criticism.

In short, 18 months from now, we may well look back at tomorrow as the single most important moment in the states' constitutional challenges to the ACA.

Metzger and Morrison on Judge Vinson's analysis of the taxing power question

Gilian Metzger (Columbia Law School) and Trevor Morrison (also Columbia Law School) have posted an interesting, short essay at Balkinization addressing Judge Vinson's analysis of the taxing power question in his recent opinion (granting in part and denying in part the United States's motion to dismiss) in Florida v. HHS. You will recall that Judge Vinson decided that, while the substance of the minimum coverage provision might fit within Congress's taxing power, ACA 1501(b) could not be a valid use of the taxing power because Congress intended the provision to be regulation and accompanying penalty, not a tax. In other words, a court can only consider whether a provision is a constitutional tax if Congress actually intended it to be a tax, and here there is a great deal of evidence indicating that Congress (and the President) saw it as a regulatory sanction. Metzger and Morrison -- who, along with Jack Balkin, have co-authored amicus briefs supporting the constitutionality of the ACA in Virginia v. Selbelius -- point out some important weak points in Judge Vinson's analysis.

Video of Randy Barnett's Hayek Lecture

Professor Randy Barnett's Hayek Lecture, delivered at NYU, can be viewed in full here. Again, I think his articulation of the arguments against the constitutionality of the minimum coverage provision are sharper and more incisive than any others. For those who have not read the article (and even for those who have), it is worth a watch.