A critical passage of the opinion's analysis of the severability question states as follows:
"If Congress intends to implement health care reform -- and there would appear to be widespread agreement across the political spectrum that reform is needed -- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts."
What this fails to address is why Congress should take up this task with no legislation on the books, rather than the Act minus the one unconstitutional provision.
Judge Vinson admirably reasons in several places that it would exceed the judicial competence for a judge to pick through the ACA's thousands of provisions and decide which should stand and which depend too much on the individual mandate. But on that logic, it seems just as defensible to leave everything in place other than 1501(b). Why is it more judicially modest to force Congress to start over from scratch than to force Congress to re-work the Act as currently written, absent the individual mandate?
This seems especially true here, when the provision Judge Vinson found unconstitutional will not go into effect until 2014, while many other (perfectly constitutional) parts of the Act are currently being implemented.
In short, the judicial incompetence to wade through the entire 2,700 pages is well stated, and the justification of judicial modesty is to be applauded. But the genuinely modest approach in this case, I think, would have been to strike the minimum coverage provision alone, and let Congress deal with whatever is left in the next three years.
Monday, January 31, 2011
Wow
So I guess there was a surprise after all. Not on the merits of the claim, but on the severability of the minimum essential coverage requirement from the rest of the Act.
First, you can access the opinion here.
Second, it was just this past June that the Supreme Court wrote as follows:
“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving the remainder intact.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328–329 (2006). Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U.S. 210, 234 (1932), the “normal rule” is “that partial, rather than facial, invalidation is the required course,” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)."
I am just sitting down with the opinion now, so I cannot comment on Judge Vinson's severability analysis. And I could certainly see finding the "guaranteed issue" and "community rating" provisions unseverable, as they work with the individual mandate, hand-in-hand, to comprehensively regulate the insurance market. But the entire ACA?
With respect to legislation of this magnitude, I am extraordinarily surprised that he would find the whole Act unconstitutional.
First, you can access the opinion here.
Second, it was just this past June that the Supreme Court wrote as follows:
“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving the remainder intact.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328–329 (2006). Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U.S. 210, 234 (1932), the “normal rule” is “that partial, rather than facial, invalidation is the required course,” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)."
I am just sitting down with the opinion now, so I cannot comment on Judge Vinson's severability analysis. And I could certainly see finding the "guaranteed issue" and "community rating" provisions unseverable, as they work with the individual mandate, hand-in-hand, to comprehensively regulate the insurance market. But the entire ACA?
With respect to legislation of this magnitude, I am extraordinarily surprised that he would find the whole Act unconstitutional.
Judge Vinson's ruling
We will be offering a much more in-depth analysis of Judge Vinson’s ruling later today, but for now, here is a basic summary of what he held:
1. The constitutionality of the Medicaid expansion provision:
Judge Vinson held that “while the plaintiffs’ coercion theory claim was plausible enough to survive dismissal,” it “cannot succeed and that the defendants are entitled to a judgment as a matter of law.” (Ruling at 11–12.)
2. The constitutionality of the individual mandate:
First, in regard to whether inactivity can fall within Congress’s Commerce Clause authority, Judge Vinson held that “‘activity’ is an indispensable part of the Commerce Clause analysis.” (Id. at 43–44.) Second, Judge Vinson held that the individual mandate regulates inactivity. (Id. at 44.) Third, in regard to the United States’ argument that the health care market is unique, Judge Vinson held that “the defendants’ argument that people without health insurance are actively engaged in interstate commerce based on the purported ‘unique’ feature of the much broader health care market is neither factually convincing nor legally supportable.” (Id. at 51–52.) Fourth, regarding the United States’ argument that the decision not to purchase health care insurance is the equivalent of activity, Judge Vinson held that to accept such a contention would be a “bridge to far,” which would exceed “the existing legal boundaries established by Supreme Court precedent.” (Id. at 56.) Fifth, in regard to the United States’ reliance on the Necessary and Proper Clause, Judge Vinson held: “[T]he individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be ‘proper.’” (Id. at 63.)
Judge Vinson concluded by holding that the individual mandate is not constitutional, and that “summary judgment must be granted in favor of the plaintiffs on Count 1.” (Id.) Judge Vinson then addressed the issue that has kept both sides wondering for past several months: whether the individual mandate is severable from the rest of the legislation. He answered in the negative. Judge Vinson wrote, “I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stated or fall as a single unit. The individual mandate cannot be severed.” (Id. at 74.)
3. On whether injunctive relief should be granted:
Judge Vinson held that “the award of declaratory relief is adequate and separate injunctive relief not necessary.” (Id. 75.)
Still nothing
It is now 3:00 EST, and the courthouse in Pensacola will remain open for 90 more minutes. I am off to teach for the next three hours. If anything happens in the mean time, I will be back to write about it then.
Nothing yet
As of 12:50 p.m. EST, Judge Vinson has not yet released his opinion. The courthouse in Pensacola officially closes at 4:30. So if the opinion is to be released today, it should be before then.
Sunday, January 30, 2011
A quick programming note
Due to a host of prior commitments, I will be away from a computer for most of tomorrow. We will try to have a link to Judge Vinson's opinion up as soon as possible. But I won't be able to offer any sort of analysis until the late afternoon or evening.
Florida v. HHS: a preview of tomorrow's decision
Only Judge Vinson and a few others who work in his Penascola courthouse know what tomorrow's decision will hold. But we have seen and heard enough from the judge to make a pretty good guess as to what it will probably look like. Here is what I expect:
1. The ACA's Medicaid provisions are constitutional. True, the ACA imposes a significant expansion of coverage on the states, forcing them to extend their programs to all non-elderly adults up to 133 percent (or 138 percent) of the federal poverty level. True, the states are currently in a world of budgetary hurt, such that leaving Medicaid is not practically feasible. And true, the Supreme Court (most notably in South Dakota v. Dole) has suggested that, in some circumstances, federal spending conditions can be so coercive as to cross the line into compulsion, and thus constitute an impermissible "commandeering" of state governments. But consider the following: (1) the Supreme Court has never actually invalidated a federal spending condition on this ground, and it has suggested that the whole idea is incoherent; (2) the states remain, at least as a formal matter, perfectly free to withdraw from Medicaid; (3) indeed, several of the plaintiff states (most notably Texas) have actually considered withdrawing from Medicaid in the past few months; and (4) finding that spending conditions like those in the ACA are "coercive" would create a host of problems for courts in their application of constitutional law, not the least of which is that it is almost impossible to conceive of a judicially manageable standard for when such conditions constitute compulsion. Finding a spending condition "coercive" is plausible under existing law, but it seems like the sort of ruling (given its implications) that a district court would let a higher court do for the first time in the Nation's history. For all these reasons, Judge Vinson is apt to say that, though the ACA may put a very difficult choice to the plaintiff states, it is a choice nonetheless, at least according to the Constitution. And so long as it remains a formal choice, it is not a commandeering.
2. The minimum essential coverage requirement is unconstitutional. Judge Vinson has already held that 1501(b) cannot be justified as an exercise of Congress's taxing power, as Congress intended the provision to constitute a regulatory penalty, not a tax. The only remaining question is whether it is within Congress's authority to regulate interstate commerce. Here, Judge Vinson's opinion denying the federal government's motion to dismiss (as well as his comments at oral argument in December) is quite revealing. In his opinion, Judge Vinson wrote that the mandate "is simply without prior precedent." More specifically, he wrote that "[p]eople have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake.
Rather, it is based solely on citizenship and on being alive." This means that Judge Vinson has concluded that (a) the activity-inactivity distinction has salience in this context, (b) the minimum coverage provision regulates inactivity, and thus (c) Congress cannot justify 1501(b) as regulating an individual's "activity" of making an economic decision as to how to finance her health care. Consequently, the only basis for upholding the mandate would be that, even though it regulates pure inactivity, it is an essential component of the ACA's comprehensive regulation of the markets for health insurance and health care services, and thus is a "Necessary and Proper" means to the regulation of "commerce among the States." But here, too, Judge Vinson has indicated that, in his view, the mandate is unprecedented. Even when using the Commerce and Necessary and Proper Clauses in combination, he has emphasized, never has Congress forced individuals to engage in commercial transactions as a means of regulating interstate commerce. Rather, Judge Vinson has seemed quite sympathetic to the notion that Congress, in its regulation of interstate commerce, cannot reach persons who have taken no voluntary step to expose themselves to the regulatory scheme--whether through the Commerce Clause alone or as augmented by the Necessary and Proper Clause. In this sense, the minimum coverage requirement goes beyond what the Supreme Court has ever before condoned. And to Judge Vinson, this appears a sufficient basis for declaring 1501(b) unconstitutional.
Again, this is no more than a guess. But I think most people who have followed this case closely would be surprised if Judge Vinson's opinion veers too much from this basic outline.
1. The ACA's Medicaid provisions are constitutional. True, the ACA imposes a significant expansion of coverage on the states, forcing them to extend their programs to all non-elderly adults up to 133 percent (or 138 percent) of the federal poverty level. True, the states are currently in a world of budgetary hurt, such that leaving Medicaid is not practically feasible. And true, the Supreme Court (most notably in South Dakota v. Dole) has suggested that, in some circumstances, federal spending conditions can be so coercive as to cross the line into compulsion, and thus constitute an impermissible "commandeering" of state governments. But consider the following: (1) the Supreme Court has never actually invalidated a federal spending condition on this ground, and it has suggested that the whole idea is incoherent; (2) the states remain, at least as a formal matter, perfectly free to withdraw from Medicaid; (3) indeed, several of the plaintiff states (most notably Texas) have actually considered withdrawing from Medicaid in the past few months; and (4) finding that spending conditions like those in the ACA are "coercive" would create a host of problems for courts in their application of constitutional law, not the least of which is that it is almost impossible to conceive of a judicially manageable standard for when such conditions constitute compulsion. Finding a spending condition "coercive" is plausible under existing law, but it seems like the sort of ruling (given its implications) that a district court would let a higher court do for the first time in the Nation's history. For all these reasons, Judge Vinson is apt to say that, though the ACA may put a very difficult choice to the plaintiff states, it is a choice nonetheless, at least according to the Constitution. And so long as it remains a formal choice, it is not a commandeering.
2. The minimum essential coverage requirement is unconstitutional. Judge Vinson has already held that 1501(b) cannot be justified as an exercise of Congress's taxing power, as Congress intended the provision to constitute a regulatory penalty, not a tax. The only remaining question is whether it is within Congress's authority to regulate interstate commerce. Here, Judge Vinson's opinion denying the federal government's motion to dismiss (as well as his comments at oral argument in December) is quite revealing. In his opinion, Judge Vinson wrote that the mandate "is simply without prior precedent." More specifically, he wrote that "[p]eople have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake.
Rather, it is based solely on citizenship and on being alive." This means that Judge Vinson has concluded that (a) the activity-inactivity distinction has salience in this context, (b) the minimum coverage provision regulates inactivity, and thus (c) Congress cannot justify 1501(b) as regulating an individual's "activity" of making an economic decision as to how to finance her health care. Consequently, the only basis for upholding the mandate would be that, even though it regulates pure inactivity, it is an essential component of the ACA's comprehensive regulation of the markets for health insurance and health care services, and thus is a "Necessary and Proper" means to the regulation of "commerce among the States." But here, too, Judge Vinson has indicated that, in his view, the mandate is unprecedented. Even when using the Commerce and Necessary and Proper Clauses in combination, he has emphasized, never has Congress forced individuals to engage in commercial transactions as a means of regulating interstate commerce. Rather, Judge Vinson has seemed quite sympathetic to the notion that Congress, in its regulation of interstate commerce, cannot reach persons who have taken no voluntary step to expose themselves to the regulatory scheme--whether through the Commerce Clause alone or as augmented by the Necessary and Proper Clause. In this sense, the minimum coverage requirement goes beyond what the Supreme Court has ever before condoned. And to Judge Vinson, this appears a sufficient basis for declaring 1501(b) unconstitutional.
Again, this is no more than a guess. But I think most people who have followed this case closely would be surprised if Judge Vinson's opinion veers too much from this basic outline.
Politico reports that the decision is coming tomorrow in Florida v. HHS
Jennifer Haberkorn and Sarah Kliff have posted this item on PULSE, Politico's health care policy blog:
"Judge Roger Vinson is likely to issue his ruling on the multi-state lawsuit against health care reform on Monday, his office tells PULSE."
"Judge Roger Vinson is likely to issue his ruling on the multi-state lawsuit against health care reform on Monday, his office tells PULSE."
So there it is.
Friday, January 28, 2011
Florida decision Monday?
Fox News is reporting that Judge Vinson will hand down his decision in Florida v. HHS on Monday. Here is the report.
UPDATE: As of 10:00 p.m. EST, no other media source is reporting that the decision will come down Monday. And the Fox story does not explain from where the information comes. Thus, it probably makes sense to take this report with a grain of salt, at least for the time being. (And if anyone out there has any other information on the matter, please feel free to let me know.)
UPDATE: As of 10:00 p.m. EST, no other media source is reporting that the decision will come down Monday. And the Fox story does not explain from where the information comes. Thus, it probably makes sense to take this report with a grain of salt, at least for the time being. (And if anyone out there has any other information on the matter, please feel free to let me know.)
Wednesday, January 26, 2011
United States files its brief in Baldwin v. Sebelius
This evening, the United States filed its brief (as appellee) in Baldwin v. Sebelius at the United States Court of Appeals for the Ninth Circuit. You can access the brief here.
(Speaking of the Ninth Circuit, has any circuit ever been reversed by the Supreme Court by a cumulative vote total of 41 to 0 in the span of six days? Ouch.)
In the decision being appealed, the District Court of the Southern District of California held that the plaintiffs lacked standing. Its ruling was broader than that handed down by the District of New Jersey in the New Jersey Physicians case, in that it did not turn so much on the specific factual allegations made by the plaintiffs, but more generally on the uncertainty that the plaintiffs would be subject to any sort of penalty under ACA 1501(b) by the time January 1, 2014 rolled around.
Thus, the judgment under review in Baldwin only addressed the standing issue. But, on very similar facts in Thomas More Law Center v. Obama, the United States (before the Sixth Circuit) has chosen not to challenge the district court's holding that the plaintiffs do have standing to challenge the minimum coverage provision. Here in Baldwin, the United States nonetheless argues that the district court's decision that the plaintiffs lack standing should be affirmed.
Perhaps because of the the tension in these positions, the United States devotes only five pages in its Baldwin brief to the standing question. The remainder (32 pages) is devoted to defending the constitutionality of the minimum essential coverage requirement (even though the district court did not reach the question).
As with the filings in Thomas More Law Center, Beth Brinkmann (from DOJ Civil Appellate) is on the brief and appears to be directing the United States's appellate strategy.
(Speaking of the Ninth Circuit, has any circuit ever been reversed by the Supreme Court by a cumulative vote total of 41 to 0 in the span of six days? Ouch.)
In the decision being appealed, the District Court of the Southern District of California held that the plaintiffs lacked standing. Its ruling was broader than that handed down by the District of New Jersey in the New Jersey Physicians case, in that it did not turn so much on the specific factual allegations made by the plaintiffs, but more generally on the uncertainty that the plaintiffs would be subject to any sort of penalty under ACA 1501(b) by the time January 1, 2014 rolled around.
Thus, the judgment under review in Baldwin only addressed the standing issue. But, on very similar facts in Thomas More Law Center v. Obama, the United States (before the Sixth Circuit) has chosen not to challenge the district court's holding that the plaintiffs do have standing to challenge the minimum coverage provision. Here in Baldwin, the United States nonetheless argues that the district court's decision that the plaintiffs lack standing should be affirmed.
Perhaps because of the the tension in these positions, the United States devotes only five pages in its Baldwin brief to the standing question. The remainder (32 pages) is devoted to defending the constitutionality of the minimum essential coverage requirement (even though the district court did not reach the question).
As with the filings in Thomas More Law Center, Beth Brinkmann (from DOJ Civil Appellate) is on the brief and appears to be directing the United States's appellate strategy.
Fourth Circuit expedites Virginia v. Sebelius, calendars with Liberty University v. Geithner
The Fourth Circuit today issued three orders related to the two ACA cases currently pending in that court, Virginia v. Sebelius and Liberty University v. Geithner. First, the court granted the parties' joint motion in Virginia v. Sebelius for expedited briefing and argument, stating that the oral argument will occur during the session of court scheduled for May 10 to May 13. Second, it issued a revised briefing schedule for Virginia v. Sebelius with the following deadlines:
* The Unites States's opening brief is due February 28
* Virginia's opening brief is due March 28
* The United States's reply brief is due April 11
* A reply brief from Virginia, if it chooses to file one, is due 7 days from service of the United States's reply brief
Finally, the court announced that Liberty University v. Geithner will also be argued during the session of court scheduled for May 10 to May 13.
UPDATE: Here is the order granting oral argument and expedited briefing. Here is the order specifying the briefing schedule. And here is the order granting oral argument and noting its timing in Liberty University v. Geithner.
* The Unites States's opening brief is due February 28
* Virginia's opening brief is due March 28
* The United States's reply brief is due April 11
* A reply brief from Virginia, if it chooses to file one, is due 7 days from service of the United States's reply brief
Finally, the court announced that Liberty University v. Geithner will also be argued during the session of court scheduled for May 10 to May 13.
UPDATE: Here is the order granting oral argument and expedited briefing. Here is the order specifying the briefing schedule. And here is the order granting oral argument and noting its timing in Liberty University v. Geithner.
Appellants file opening brief in Third Circuit in New Jersey Physicians v. Obama
The appellants in New Jersey Physicians, Inc. v. Obama have today filed their opening brief in the United States Court of Appeals for the Third Circuit. You may recall that the District Court dismissed their complaint on standing grounds. Moreover, the District Court's holding was extremely factbound: that the plaintiffs had failed to make any factual allegations concerning the present financial impact on them of having to acquire minimally adequate health coverage by January 1, 2014. It is only that very narrow, fact-specific question that is up on appeal.
You can access the brief here.
You can access the brief here.
Koppelman and Somin on broccoli and slippery slopes
It started gaining currency during Justice Kagan's Senate hearings, if not before. And it has only grown in prominence since (mentioned in roughly 100 percent of legal briefs challenging the minimum essential coverage requirement). We have all now heard the question a hundred times, maybe many more:
If 1501(b) is constitutional, what prevents Congress from requiring every American to eat broccoli (or join a health club, or eat at certain government-approved restaurants, or purchase GM cars, or [fill in your own horrible and add it to the parade])?
Professors Koppelman (Northwestern) and Somin (George Mason) have an interesting exchange on the question (at Balkinization and the Volokh Conspiracy, respectively). Recommended reading.
If 1501(b) is constitutional, what prevents Congress from requiring every American to eat broccoli (or join a health club, or eat at certain government-approved restaurants, or purchase GM cars, or [fill in your own horrible and add it to the parade])?
Professors Koppelman (Northwestern) and Somin (George Mason) have an interesting exchange on the question (at Balkinization and the Volokh Conspiracy, respectively). Recommended reading.
Mark Hall on the constitutionality of the individual mandate
Professor Mark Hall (Wake Forest), one of the country's leading experts on health law, has posted his article Commerce Clause Challenges to Health Care Reform (forthcoming U.Penn. L. Rev. 2011) on SSRN. It is an exceptionally well written, well reasoned argument as to why the ACA's minimum essential coverage requirement falls within Congress's commerce power (as augmented by the Necessary and Proper Clause). And it hones in on the argument most think is the government's strongest: even if 1501(b) does not itself regulate interstate commerce, it constitutes an essential component of a broader regulatory scheme that clearly does. Professor Hall also takes on the action-inaction distinction and the various slippery slope arguments. You can access the article here.
An abstract of the article follows the jump.
An abstract of the article follows the jump.
Tuesday, January 25, 2011
Revere America Foundation files amicus brief in Liberty University v. Gethner
This brief is in support of the appellants, Liberty University et al. You can access it here.
U.S. files motion for summary judgment in U.S. Citizens Ass'n v. Sebelius
The Department of Justice has filed its motion for summary judgment in U.S. Citizens Ass'n v. Sebelius, which is currently pending before the United States District Court for the Northern district of Ohio. The sole question is whether the minimum essential coverage requirement exceeds Congress's enumerated powers. You can access the memorandum supporting its motion here.
Monday, January 24, 2011
Middle District of Pennsylvania denies U.S.'s 12(b)(1) motion in Goudy-Bachman v. HHS
District Judge Christopher C. Connor (M.D. Pa.) today issued a decision denying the United States's motion to dismiss for lack of subject matter jurisdiction, under F.R.C.P. 12(b)(1), in Goudy-Bachman v. HHS. The plaintiffs' one claim (surprise!) is that the minimum essential coverage requirement exceeds Congress's enumerated powers. You can access the opinion here.
The United States had argued that the District Court lacked jurisdiction because (1) the plaintiffs lack standing, (2) their claim is unripe, and (3) the Anti-Injunction Act bars the lawsuit. Judge Connor rejected all three contentions. Specifically, he held as follows:
* The plaintiffs have alleged an imminent injury because they "must engage in financial preparation and reduced spending based upon their present circumstances in light of the impending effective date of the individual mandate."
* Their claim is ripe because (1) the plaintiffs have demonstrated that their injury is imminent, (2) "[n]either party suggests that a factual record will inform the court’s legal analysis of the commerce clause issue," and (3) "the public interest is best served by an expeditious resolution of the constitutionality of the Act."
* The Anti-Injunction Act is beside the point because "[t]he penalty is not a tax."
Judge Connor did not rule on the United States's motion to dismiss the Bachmans' complaint under Rule 12(b)(6) (for the failure to state a claim on which relief can be granted). Rather, the judge announced that he will issue a separate opinion addressing "whether the Bachamans have stated a plausible claim that the individual mandate exceeds Congress’s authority under the Commerce Clause of the United States Constitution."
The United States had argued that the District Court lacked jurisdiction because (1) the plaintiffs lack standing, (2) their claim is unripe, and (3) the Anti-Injunction Act bars the lawsuit. Judge Connor rejected all three contentions. Specifically, he held as follows:
* The plaintiffs have alleged an imminent injury because they "must engage in financial preparation and reduced spending based upon their present circumstances in light of the impending effective date of the individual mandate."
* Their claim is ripe because (1) the plaintiffs have demonstrated that their injury is imminent, (2) "[n]either party suggests that a factual record will inform the court’s legal analysis of the commerce clause issue," and (3) "the public interest is best served by an expeditious resolution of the constitutionality of the Act."
* The Anti-Injunction Act is beside the point because "[t]he penalty is not a tax."
Judge Connor did not rule on the United States's motion to dismiss the Bachmans' complaint under Rule 12(b)(6) (for the failure to state a claim on which relief can be granted). Rather, the judge announced that he will issue a separate opinion addressing "whether the Bachamans have stated a plausible claim that the individual mandate exceeds Congress’s authority under the Commerce Clause of the United States Constitution."
Mountain States Legal Foundation files amicus brief in Liberty University v. Geithner
Amicus curiae briefs in support of the appellants (Liberty University et al.) are due by tomorrow at the Fourth Circuit. The Mountain States Legal Foundation is an early bird. You can access the brief here.
Plaintiffs file motion for summary judgment in U.S. Citizens Association v. Sebelius
The plaintiffs in United States Citizens Ass'n v. Sebelius have filed their motion for summary judgment, which you can access here. This case is currently pending in the Northern District of Ohio. On November 22, District Judge David Dowd granted the United States's motion to dismiss three of the plaintiffs' claims: that the ACA violates their (1) freedom of expressive and intimate association, (2) right to due process, and (3) constitutional right to privacy. But the Court denied the United States's motion to dismiss the claim that the minimum essential coverage requirement exceeds Congress's enumerated powers.
The United States's motion for summary judgment is likewise due today. We will post it here as soon as it becomes available.
The United States's motion for summary judgment is likewise due today. We will post it here as soon as it becomes available.
U.S. files notice with court in Coons v. Geithner
Maybe the only serious challenge to the ACA that, at least in its present posture, is not challenging the minimum essential coverage requirement is Coons v. Geithner, currently pending before the District Court for the District of Arizona. The plaintiffs in Coons, who include several Members of Congress, have moved for a preliminary injunction on the grounds that the ACA's provisions concerning how the Act can be amended, and how decisions regarding Medicare reimbursement (by the IPAB) can be overturned by Congress, amount to an unconstitutional "legislative entrenchment," as they attempt to limit the circumstances under which such congressional action can be taken.
The United States has just filed a notice with the District Court, and here is the relevant language:
"Defendants respectfully submit this notice to bring to this Court’s attention a recent series of votes in the United States House of Representatives, culminating in a January 19 vote to repeal the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010) (the “ACA”). The measure, titled “Repealing the Job-Killing Health Care Law Act,” H.R. 2, 112th Cong. (2011), would repeal the entire ACA, including 42 U.S.C. §§ 1395kkk(e)(3)(A), (f)(1), and the Independent Payment Advisory Board—the subjects of plaintiffs’ motion for a preliminary injunction. Representatives Jeff Flake and Trent Franks—the plaintiffs here1—voted aye on the initial procedural votes (ordering the previous question and agreeing to the resolution), and in favor of ultimate repeal. See Final Vote Results for Roll Call 14, available at
http://clerk.house.gov/evs/2011/roll014.xml#Y (last visited Jan. 24, 2011).
"No one stopped plaintiffs from casting these votes. This shows conclusively that plaintiffs are wrong to assert that “they would not be able to cast such votes at all.” Pls. Mot. Prelim. Inj. at 9. Nor did the challenged provisions stop Representatives Flake and Franks from “vot[ing] their conscience on controversial issues,” id. at 14, affect their “freedom to speak and deliberate,” id. at 15, infringe their “obligation to take positions on controversial political questions,” id. (internal quotation marks omitted), or, “in this highly symbolic moment,” prevent them from “casting a” “highly symbolic” “vote . . . to repeal IPAB,” id. at 17. And, as is evident from their respective votes, there was no “chill[ing]” effect on plaintiffs’ “free expression.” Id. For this reason (and those set forth in defendants’ opposition), plaintiffs’ meritless motion for a preliminary injunction should be denied."
The United States has just filed a notice with the District Court, and here is the relevant language:
"Defendants respectfully submit this notice to bring to this Court’s attention a recent series of votes in the United States House of Representatives, culminating in a January 19 vote to repeal the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010) (the “ACA”). The measure, titled “Repealing the Job-Killing Health Care Law Act,” H.R. 2, 112th Cong. (2011), would repeal the entire ACA, including 42 U.S.C. §§ 1395kkk(e)(3)(A), (f)(1), and the Independent Payment Advisory Board—the subjects of plaintiffs’ motion for a preliminary injunction. Representatives Jeff Flake and Trent Franks—the plaintiffs here1—voted aye on the initial procedural votes (ordering the previous question and agreeing to the resolution), and in favor of ultimate repeal. See Final Vote Results for Roll Call 14, available at
http://clerk.house.gov/evs/2011/roll014.xml#Y (last visited Jan. 24, 2011).
"No one stopped plaintiffs from casting these votes. This shows conclusively that plaintiffs are wrong to assert that “they would not be able to cast such votes at all.” Pls. Mot. Prelim. Inj. at 9. Nor did the challenged provisions stop Representatives Flake and Franks from “vot[ing] their conscience on controversial issues,” id. at 14, affect their “freedom to speak and deliberate,” id. at 15, infringe their “obligation to take positions on controversial political questions,” id. (internal quotation marks omitted), or, “in this highly symbolic moment,” prevent them from “casting a” “highly symbolic” “vote . . . to repeal IPAB,” id. at 17. And, as is evident from their respective votes, there was no “chill[ing]” effect on plaintiffs’ “free expression.” Id. For this reason (and those set forth in defendants’ opposition), plaintiffs’ meritless motion for a preliminary injunction should be denied."
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