Appellants file their opening brief in Liberty University v. Geithner

The appellants in Liberty University v. Geithner--Liberty University and two private individuals, Michelle G. Waddell and Joanne V. Merrill--have filed their opening brief in the Fourth Circuit. You can access the brief here. With this, briefing on the constitutionality of the ACA's minimum essential coverage requirement is now underway in two federal Courts of Appeals: the Fourth (in this case) and the Sixth (in Thomas More Law Center v. Obama).

An interesting exchange on the role of the insurance industry

Jack Balkin (Yale) and Ilya Somin (George Mason) have posted an interesting exchange on the role of the health insurance (or health plan) industry in supporting the ACA's minimum essential coverage provision, and its potential impact on the ACA litigation. Balkin's post is here, and Somin's response is here.

The exchange raises a some important questions, each of which deserves more exploration: (1) If the Supreme Court ultimately invalidates the individual mandate, will it also invalidate the ACA's "guarantee issue" and "community rating" provisions in ACA 1201? Everyone concedes that these provisions work together as an integrated, systematic regulation of the market (though there is considerable dispute about the wisdom of that system). But would the Court invalidate those provisions itself, or would it leave rationalizing what is left of the Act to Congress? (2) If the latter, will Congress actually do so? That is, would there be the political will to repeal--in a stand-alone vote--the portions of the ACA that are actually quite popular with the American public? (3) To what extent will "big business" (admittedly, a vague term, especially when applied to legislation as varied and as complex as the ACA) get involved in the ACA litigation? The hospitals have already filed amicus briefs supporting the ACA's constitutionality. The National Federation of Independent Businesses (which represents a large swath of small businesses) is a plaintiff in Florida v. HHS. Will other businesses jump into the fray? For instance, will the influential Chamber of Commerce National Litigation Center take a position? And if it does, how much might this influence the Supreme Court?

All matters to keep our eyes on.

Summary of Willis amicus brief in TMLC v. Obama

As time permits, we will try to summarize some of the more significant documents filed in the various lawsuits. The following is a summary of the amicus curiae brief filed by Professor Steven Willis (University of Florida) at the Sixth Circuit in Thomas More Law Center v. Obama. This summary was prepared by Brandon Douglass, Graduate Fellow at Santa Clara University School of Law.


Professor Willis argues the following: (1) that the ACA’s individual mandate is not authorized by Congress’s Commerce Power; (2) that the individual mandate is contrary to the Necessary and Proper Clause; (3) that the individual penalty is contrary to Congress’s limited taxing power; and (4) that the Anti-Injunction Act does not preclude the Sixth Circuit from finding the penalty provision unconstitutional.

In regard to whether the individual mandate is authorized by the Commerce Power, Professor Willis writes that, because others have “adequately explained” this issue, he would limit his argument to “the Mandate unconstitutionally regulates individual inactivity, contrary to its limited power to regulate actual commerce.” (Willis Amicus Brief at 3.) Assuming, however, that the court disagrees, Professor Willis proceeds to argue that because the Commerce Power does not provide Congress with enforcement power, it must rely on the Necessary and Proper Clause to justify the penalty provision. (Id. at 3–9.) Professor Willis argues that the penalty provision is neither necessary nor proper because—unlike the use of the police power to outlaw certain behaviors, or the use of eminent domain to extract private property in exchange for just compensation—it amounts to both a regulatory penalty and a tax. (Id. at 3.) This, he argues, is constitutionally problematic because under either approach, the taxation power is being levied improperly, and therefore, poses the risk of “eviscerating” constitutional limitations on “the power of Congress to take money from people.” (Id. at 8–9.)

Regarding Congress’s taxing power, Professor Willis argues that in order “to satisfy the limited Taxing Power, the individual penalty must fit into one of five groups”: a duty, an impost, an excise, a direct tax, or a tax on income, as permitted by the Sixteenth Amendment. (Id. at 9.)  Professor Willis provides a brief description of each of these types of constitutionally authorized taxes, and concludes that §1501(b)’s exaction for failing to acquire minimally adequate coverage does not fit into any of them.

Jensen on the taxing power and the ACA

Professor Erik Jensen (Case Western) has posted The Individual Mandate and the Taxing Power on SSRN. It is a very well written rejoinder to, among others, Professor Brian Galle (whose article we linked here earlier this week) and the amicus briefs filed by Professors Balkin, Metzger, and Morrison in Virginia v. Sebelius and Florida v. HHS. Here is a short summary, lifted from the text:

"First, the Taxing Clause provides no authority for requiring the acquisition of insurance. Second, the penalty for failure to acquire minimum essential coverage should not be treated as a tax at all, and, whatever proponents of the individual mandate think, that makes the case for constitutionality easier. Third, if the penalty will be a tax, it might be a direct tax (in particular, a capitation tax), and, if so, it will be invalid because it will not be apportioned and it will not be a tax on incomes. Finally, even if the individual mandate can be justified under the Commerce Clause, the constitutional rules dealing with taxes will come into play—if the penalty will be a tax."

The most interesting contention here may be the last--that even if Congress is using its commerce power to enact the minimum essential coverage requirement, if it does so in a manner that takes the form of a tax, it is subject to the Constitution's various limitations on taxes. But the entire article very engagingly written and worth a read.

U.S. files its brief in Thomas More Law Center v. Obama

The Department of Justice has just filed its brief in the Sixth Circuit as the appellee in Thomas More Law Center v. Obama. You can access the brief here. This is the first brief filed by the United States in any Court of Appeals defending the constitutionality of the ACA. (Again, the only issue in this appeal is whether the minimum essential coverage requirement exceeds Congress's enumerated powers. The parties stipulated to the dismissal without prejudice of the plaintiffs' other claims.)

Two very quick items of note that I noticed on a quick skim: (1) it appears that Beth Brinkmann (Wikipedia entry here) is taking the lead in guiding the federal government's position in the Courts of Appeals, and (2) the United States has declined to challenge the District Court's decision that the plaintiffs have standing and that their claim is ripe. Both of these developments obviously will affect the other cases.

Some upcoming deadlines

Two deadlines are approaching in the next five days that are relatively significant--at least in the ACA litigation world:

* This Friday, January 14, the United States' brief (as appellee) is due at the Sixth Circuit in Thomas More Law Center v. Obama. I believe any amicus supporting the federal government are due a week later, on January 21. Again, this is the case currently furthest along in the federal court pipeline.

* On Tuesday, January 18, the appellants' brief is due at the Fourth Circuit in Liberty University v. Geithner. This is the case that is second furthest along in the pipeline (at least if we assume, safely I think, that the Ninth Circuit will only be addressing the justiciability questions in Baldwin v. Sebelius, as these were the only questions addressed there by the district court).

We will post the documents here just as soon as they are filed and docketed on PACER.

Maine, too?

It looks as if the State of Maine may be jumping into the fray of Florida v. HHS as well. Here is an article describing that possibility from LifeSiteNews.

Galle on the taxing power issues in the ACA

Professor Brian Galle (Boston College) has written this forthcoming essay for the Yale Law Journal Online addressing the taxing power questions raised by the minimum coverage provision. Here is a summary, snipped from the essay's introduction:

"In brief, my argument is that the [individual responsibility requirement] is unquestionably a tax, since Congress repeatedly (if not universally) refers to it in that way, and there is in any event no requirement that Congress invoke the magic word “tax” to rely on its taxing power. Those claims make up Part I of this Essay. Parts II and III take up the question of how one ought to interpret constitutional clauses, such as those that produced the existing limits on the taxing power, that are obviously the product of unprincipled compromise. Part II argues that the IRR is not a “direct” tax subject to a burdensome apportionment requirement, in part because that term should be read narrowly, as the Founders read it. And Part III argues that even if it is “direct,” the IRR is exempt from apportionment by the 16th Amendment’s exception for “income” taxes, because among other reasons courts should not be in the business of writing their own tax code, and because federalism considerations weigh in favor of federal action in this case."

Galle has written previously on this subject, and this article, like his other work, is worth a read.

Rock chalk, make way for the Jayhawks

First Wisconsin, now Kansas, and perhaps soon some others (such Ohio and Wyoming). With Democrat Steve Six leaving the office of Kansas Attorney General, and Derek Schmidt assuming the post, the state of Kansas has announced its intent to become a plaintiff in Florida v. HHS. Here is a story from the Wichita Business Journal. This will run the total (not including Ohio or Wyoming) to 22 state plaintiffs in the case, and 23 state governments in total, challenging the constitutionality of the ACA.

Alderson v. United States

Yesterday, Justice Thomas, joined by Justice Scalia (except for one footnote), issued a dissent from the Court's denial of certiorari in Alderson v. United States, a case involving the constitutionality of 18 U.S.C. 931(a). That statute makes it unlawful for any person "to purchase, own, or possess  body armor, if  that person has been convicted of a felony that is . . . a  crime of violence." The statute defines "body armor" as "any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire." Alderson claimed that his conviction was unconstitutional because 931(a) exceeds Congress's enumerated powers. The Ninth Circuit upheld his conviction, holding that the "jurisdictional hook" in the statute--requiring that the possessed body armor have been "sold or offered for sale, in interstate or foreign commerce"--brought the statute within Congress's commerce power. Alderson sought review by the Supreme Court, but the Court declined the invitation. It is from this denial that Justices Thomas and Scalia dissented, arguing that the Ninth Circuit's decision had effectively nullified the Court's holdings in United States v. Lopez and United States v. Morrison.

Because the case concerned the scope of Congress's commerce power, many have speculated that Justice Thomas's opinion might signal something significant concerning what the Court would do with the ACA. I don't think it signals much at all--or at least anything we didn't already know.

Summary spreadsheet added

In light of my own difficulty in keeping track of what was happening at any moment in time in the various lawsuits, I have created a very simple spreadsheet (in MS Excel) that contains, in summary form, the current status of the various legal challenges pending in federal court. Thus far, I have only included eight of the lawsuits. I will add a few more, though I probably will not add all of them. Some of them are just too far afield to warrant the effort.

I will be updating the spreadsheet regularly, and it will remain available as a bar across the top of the blog.  

Oklahoma reportedly to file its own suit

According to this report in the New York Times, newly elected Oklahoma Attorney General Scott Pruitt has decided to file a separate lawsuit challenging the constitutionality of the ACA. Pruitt's decision is apparently based on, in his view, the necessity of defending an amendment to the Oklahoma constitution, approved by voters in November, that purports to prohibit any Oklahoman from being required to purchase health insurance. (I have written here before that I think these "health care freedom" laws are, though perfectly legitimate as acts of political expression, void ab initio to the extent they attempt to nullify federal laws, and thus inapposite as a legal matter.)

If and when Oklahoma files its challenge, it would be the third (along with Virginia v. Sebelius and Florida v. HHS) in which a state government is a party.

UPDATE: Here is a press release from the office of the Oklahoma Attorney General. It states that the suit will be filed "in the coming weeks."

Two more amicus briefs in TMLC v. Obama

Two more briefs of amicus curiae in support of the appeallants (Thomas More Law Center et al.) have been filed at the Sixth Circuit in Thomas More Law Center v. Obama. One was filed by the the American Center for Law and Justice (available here) and one was filed by the Mountain States Legal Foundation (available here).

Documents added for Walters v. Holder

The far righthand column, down near the bottom, now contains the filings in Walters v. Holder, a case now pending before Judge Keith Starrett in the Southern District of Mississippi. The plaintiffs are three private individuals and the Lieutenant Governor of Mississippi, Phil Bryant. The amended complaint alleges that the minimum coverage requirement is unconstitutional because (1) it exceeds Congress's enumerated powers, (2) it constitutes a taking of property without just compensation, (3) it deprives the plaintiffs of liberty without due process of law, and (4) it constitutes an unapportioned "direct" tax. Additionally, Lieutenant Governor Bryant contends that the ACA unconstitutionally commandeers the states.

The United States has filed a motion to dismiss, and the individual plaintiffs and Lieutenant Governor Bryant have filed separate responses to that motion. The United States' reply brief is due Friday, January 21. Judge Starrett has not yet indicated whether there will be a hearing on the motion to dismiss, or when he plans to issue his decision.

"Hot topics" panel at AALS

This is just a quick note for readers attending the AALS meeting in San Francisco this week. On Friday morning, from 10:45 to 12:15 (at the Hilton Union Square), there will be a "hot topics" panel addressing the ACA litigation. The panel includes several people who have been involved in the cases. Specifically:

* Professor Randy Barnett (Georgetown)

* Professor Gillian Metzger (Columbia)

* Professor David Oedel (Mercer)

* Dean Erwin Chemerinsky (University of California Irvine)

In addition, Professor Barnett will be debating Professor Orin Kerr (George Washington) about the constitutionality of ACA 1501(b) over lunch Friday at the Federalist Society AALS event, from 12:15 to 1:30.

Update on United States Citizens Association v. Obama

Another update on one of the less-closely-followed cases.

On November 22, Judge David D. Dowd (Northern District of Ohio) dismissed three of the plaintiffs' claims in U.S. Citizens Association v. Obama, but he denied the United States's motion to dismiss with respect to the plaintiffs' claim that 1501(b) exceeds Congress's enumerated powers. (You can find the opinion here.) Not long thereafter, the United States filed a motion to stay the proceedings in the case on the ground that Thomas More Law Center v. Obama was already docketed in the Sixth Circuit, and the Sixth Circuit's decision in that case would entirely control the outcome in U.S. Citizens Association on the one claim that Judge Dowd had not dismissed. The plaintiffs opposed a stay, however, on the ground that it would substantially delay their ability to appeal Judge Dowd's dismissal of their other three claims. (Such a dismissal cannot be appealed until after the other proceedings have concluded at the District Court.)

On December 20, Judge Dowd denied the United States's motion for a stay, and the case will proceed forthwith. (You can access that order here.) Here is the schedule for upcoming filings:

* The parties' motions for summary judgment are due by January 24.

* Responses to the motions for summary judgment are due by February 14.

Judge Dowd has yet to decide whether to hold a hearing on the summary judgment motions.

Update on New Jersey Physicians v. Obama

You may recall that Judge Wigenton (U.S. District Court for the District of New Jersey) dismissed the plaintiffs' complaint in New Jersey Physicians v. Obama back on December 7 on the ground that the plaintiffs lacked standing. (You can find the opinion here.) In particular, she held that the plaintiffs had not alleged any current or imminent harm from the minimum coverage provision, and thus had failed to establish the constitutionally requisite "injury in fact" for purposes of Article III.

The plaintiffs have appealed Judge Wigenton's decision to the Third Circuit, which recently issued a scheduling order. (You can access that order here). Here are the relevant details:

* The brief for the appellants (New Jersey Physicians et al.) is due January 26, 2011.

* The brief for the appellees (United States) is due 30 days later, or February 25, 2011.

* The appellants' reply brief, if they decide to file one, is due 14 days after that, or March 11.

The Third Circuit has yet to schedule oral argument in the case.    

The current status of Virginia v. Sebelius (and what it might suggest)

Shortly after Judge Hudson handed down his opinion declaring the individual insurance mandate unconstitutional, the United States made clear that it did not share Virginia's interest in seeking expedited review from the Supreme Court. Instead, it indicated its intent to seek review first in the United States Court of Appeals for the Fourth Circuit.

As of now, nothing more has happened. The first step in appealing a district court judgment, according to the Federal Rules of Appellate Procedure, is to file a notice of appeal in the appropriate district court. As of today, the United States has not filed such a notice. The deadline for doing so, per Rule 4(a)(1)(B) of the F.R.A.P., is 60 days after the entry of judgment, or February 11. (The general rule in civil cases is 30 days, but it is 60 days in any case in which the United States is a party.) Thus, it could be another month before the case is even docketed at the Fourth Circuit.

This is not terribly important in itself. But it potentially suggests a few things:

* Given that Liberty University v. Geithner is already set for briefing in the Fourth Circuit (see the schedule below), the United States could ask that the proceedings in Virginia v. Sebelius be stayed pending the resolution of Liberty University. The two cases raise precisely the same legal question, though one has been less politically salient, at least to this point.

* Of course, it is unclear how Virginia, or the Fourth Circuit, would react to a stay request. One would think that the Virginia Attorney General would prefer his case to be the one that goes forward. But the Fourth Circuit must do something to coordinate the two cases; it would be quite awkward to two separate Fourth Circuit panels to be deciding precisely the same legal issue simultaneously, potentially producing a split within the circuit itself.

* The United States's general failure to move quickly on its appeal seems to suggest that it thinks it stands to benefit from extending these proceedings as long as possible. That is, the Department of Justice may well believe  (with some reason) that the longer Americans have to live with health care reform and its (albeit partial) implementation, the more popular it will become, and thus the less likely courts will be to invalidate it.

* And perhaps what the United States anticipates is that, instead of granting a stay, the Fourth Circuit will consolidate the two cases or arrange for them to be argued on the same day before the same panel. If it does so, it will then be the briefing schedule of the later case that will determine the schedule for both. And thus, stringing out the appeal in Virginia v. Sebelius for as long as possible would have the effect of slowing down both appeals -- which, again, seems to be part of DOJ's strategy.

* Either way, the United States would achieve a strategic victory of sorts. If it gets a stay of Virginia v. Sebelius, it would remove Virginia from the case actually decided by the Fourth Circuit. And if the cases are functionally consolidated, it would push back the timing of the Fourth circuit's decision substantially.

Briefing schedule in Liberty University v. Geithner

Thus far, district courts in three cases have reached the question of whether Congress has the constitutional authority to enact ACA 1501(b), the minimum essential coverage requirement. Those are, in chronological order, the Eastern District of Michigan (Judge Steeh) in Thomas More Law Center v. Obama, the Western District of Virginia (Judge Moon) in Liberty University v. Geithner, and the Eastern District of Virginia (Judge Hudson) in Virginia v. Sebelius. All three cases are now proceeding to the courts of appeals.

As discussed in prior posts, the topside briefs and supporting amici have already been filed in Thomas More Law Center. The United States's brief is due to the Sixth Circuit in that case a week from Friday, January 14. At the present moment, this cases is furthest along in the judicial pipeline, and thus the one most likely to be the first orally argued before a federal circuit court.

Not far behind, though, is Liberty University, for which the Fourth Circuit has set down the following briefing schedule:

* The appellants' brief (Liberty University et al.) is due January 18.

* The appellees' brief (from the United States) is due February 14.

* The appellants' reply brief (if filed) is due within 14 days of the filing of the appellees' brief.

The Fourth Circuit has yet to schedule oral argument in the case. You can access its scheduling order here.

Wisconsin joins the fray

As has been widely reported, the state of Wisconsin has just become an additional plaintiff in Florida v. HHS. That runs the total to 21 state plaintiffs in that case (represented by 17 attorneys general and 4 governors), and 22 states in total (once we add the Commonwealth of Virginia) currently challenging the ACA in federal court.