As most of you have probably by now heard, Judge Gladys Kessler of the District Court for the District of Columbia today granted the United States's motion to dismiss in Mead v. Holder, concluding that the minimum essential coverage provision is within Congress's power to regulate commerce among the several states. You can access the opinion here.
I have only had a chance to skim the opinion thus far, so I have nothing intelligent to say (not to imply that I ever do regardless). But this appears to be a crucial passage (from p.49):
"In choosing not to purchase health insurance, Plaintiffs are actively arranging their circumstances (whether to save for their children’s education or buy a new car) so that they must, in the future, rely on either their own resources or on federal law requiring medical providers to care for the sick and injured. There is no question, as Congress noted, that such mandatory care often goes uncompensated, although ultimately paid for by other market participants and the taxpayer. See ACA §1501(a)(2)(F), as amended by § 10106. For these reasons, the Court concludes that a decision not to purchase health insurance is an 'activity.'"
Once one concludes that the conduct being regulated by 1501(b) constitutes activity, it is almost inescapable that this activity is economic in nature. And this, in turn, means that the activity, in aggregate, substantially affects interstate commerce, and thus falls within Congress's commerce power (under the logic of Lopez and Morrison).
It is also interesting to note that Judge Kessler, after upholding 1501(b) under the Commerce Clause, nonetheless went on to hold that 1501(b) was not a tax, and thus could not be justified under the General Welfare Clause. The United States has yet to convince a single court on this claim.
I will try to have some more analysis up at some point tomorrow.
Tuesday, February 22, 2011
Saturday, February 19, 2011
Judge Vinson enters filing order
Judge Roger Vinson on Friday entered an order in response to the United States's motion to clarify the judgment. Specifically, he gave the plaintiffs three business days (until Wednesday) to file a response, and the United States three additional business days (until next Monday, February 28) to file a reply. After that, he will apparently will rule promptly. You can access the order here.
The order seemed reveal just a hint of pique. Specifically, the third sentence of that order reads as follows: "The defendants have now, two and one-half weeks later, filed a motion to 'clarify' that order." Judge Vinson appears slightly bothered that it took DOJ 17 days to determine that it needed clarification. And his use of scare quotes around the word "clarify" bespeaks a bit of sarcasm.
Of course, this may be a somewhat expected response to the DOJ's motion, part of which politely (but nonetheless clearly) criticizes the judge's opinion. Indeed, much of the Motion to Clarify argues that Judge Vinson could not possibly have expected his declaratory judgment to actually have the effect of an injunction (despite what he seemed to write), because if it did, the court would have needed to make a number of other findings, and justify its relief in various additional ways. It was a subtle way of insinuating that the relief ordered -- a declaratory judgment that has the practical effect of an injunction, but lacking any of the legal findings necessary to justify an injunction -- was incoherent, perhaps even amateurish.
In any event, we will have more filings within the week, and Judge Vinson's ultimate response will likely be an interesting read.
The order seemed reveal just a hint of pique. Specifically, the third sentence of that order reads as follows: "The defendants have now, two and one-half weeks later, filed a motion to 'clarify' that order." Judge Vinson appears slightly bothered that it took DOJ 17 days to determine that it needed clarification. And his use of scare quotes around the word "clarify" bespeaks a bit of sarcasm.
Of course, this may be a somewhat expected response to the DOJ's motion, part of which politely (but nonetheless clearly) criticizes the judge's opinion. Indeed, much of the Motion to Clarify argues that Judge Vinson could not possibly have expected his declaratory judgment to actually have the effect of an injunction (despite what he seemed to write), because if it did, the court would have needed to make a number of other findings, and justify its relief in various additional ways. It was a subtle way of insinuating that the relief ordered -- a declaratory judgment that has the practical effect of an injunction, but lacking any of the legal findings necessary to justify an injunction -- was incoherent, perhaps even amateurish.
In any event, we will have more filings within the week, and Judge Vinson's ultimate response will likely be an interesting read.
U.S. files its brief in Liberty University v. Gethner: the General makes his first appearance
Yesterday afternoon, the United States filed is Brief for Appellees in Liberty University v. Geithner. You can access the brief here.
I have yet to read the brief, but there is one thing I noticed from the cover: the brief is signed by Neal Katyal, the Acting Solicitor General of the United States. This is the first document in the various bits of ACA litigation with his name on it, and it seems to confirm what most have suspected: that the SG will be arguing these cases in the Courts of Appeals.
(I say the SG, rather than General Katyal, because Don Verilli may be confirmed before these cases are argued.)
I have yet to read the brief, but there is one thing I noticed from the cover: the brief is signed by Neal Katyal, the Acting Solicitor General of the United States. This is the first document in the various bits of ACA litigation with his name on it, and it seems to confirm what most have suspected: that the SG will be arguing these cases in the Courts of Appeals.
(I say the SG, rather than General Katyal, because Don Verilli may be confirmed before these cases are argued.)
Thursday, February 17, 2011
DOJ does not consider Judge Vinson's decision to have the force of an injunction
From page 4 of the United States's memo in support of its Motion to Clarify:
"Given (a) the wide-ranging and indeterminate consequences that would occur if the declaratory judgment were assumed to have immediate injunction-like effect; (b) the Court’s acknowledgment that it was deviating from the ‘normal rule’ of severability; (c) the concededly unique nature of the Court’s judgment, see, e.g., Op. 74; and (d) the fact that the Court declined to impose an injunction, see Op. 75, defendants do not interpret the Court’s order as requiring them to immediately cease operating programs, implementing Medicare reforms, collecting taxes, extending grants, providing tax credits, and enforcing duties created by the ACA."
"Given (a) the wide-ranging and indeterminate consequences that would occur if the declaratory judgment were assumed to have immediate injunction-like effect; (b) the Court’s acknowledgment that it was deviating from the ‘normal rule’ of severability; (c) the concededly unique nature of the Court’s judgment, see, e.g., Op. 74; and (d) the fact that the Court declined to impose an injunction, see Op. 75, defendants do not interpret the Court’s order as requiring them to immediately cease operating programs, implementing Medicare reforms, collecting taxes, extending grants, providing tax credits, and enforcing duties created by the ACA."
U.S. files motion to clarify in Florida v. HHS
It is not technically an application for a stay, but it really is (for all practical purposes).
The United States this afternoon filed a motion with Judge Vinson of the Northern District of Florida asking him to clarify the practical impact of his holding. You can access the so-called Motion to Clarify here.
Here are the summarizing paragraphs, clipped from the first two pages of the DOJ's memorandum in support of the motion:
"The Court’s declaratory judgment potentially implicates hundreds of provisions of the Act and, if it were interpreted to apply to programs currently in effect, duties currently in force, taxes currently being collected, and tax credits that may be owed at this time or in the near future, would create substantial uncertainty. Because of the sweeping nature of the declaratory judgment, such an interpretation would pose a risk of substantial disruption and hardship for those who rely on the provisions that have already been implemented.
"Defendants will appeal both the Court’s judgment and the rulings that underlie it. This motion respectfully asks the Court to clarify the scope of its order, in particular that its declaratory judgment does not relieve the parties to this case of any obligations or deny them any rights under the Affordable Care Act while the judgment is the subject of appellate review, or, if the Court anticipated otherwise, to address specifically what the Court intends the parties’ obligations and rights to be under the judgment while appellate review is pending."
So the ball is now in Judge Vinson's court. He could effectively state that everything remains in place, and the ACA remains good law, pending appellate review. Or he could say that the United States is barred from implementing any aspect of the ACA, which would be the equivalent of an injunction. Or he could say something in between--that the United States is barred from implementing certain aspects of the ACA but not others (though it is unclear how such a middle ground could be squared with the substance of his opinion). And if he states that the United States is effectively enjoined from any sort of implementation, then the DOJ has clear grounds on which to seek a stay--or, more accurately, a clearer legal obligation that it can seek to have stayed.
The United States this afternoon filed a motion with Judge Vinson of the Northern District of Florida asking him to clarify the practical impact of his holding. You can access the so-called Motion to Clarify here.
Here are the summarizing paragraphs, clipped from the first two pages of the DOJ's memorandum in support of the motion:
"The Court’s declaratory judgment potentially implicates hundreds of provisions of the Act and, if it were interpreted to apply to programs currently in effect, duties currently in force, taxes currently being collected, and tax credits that may be owed at this time or in the near future, would create substantial uncertainty. Because of the sweeping nature of the declaratory judgment, such an interpretation would pose a risk of substantial disruption and hardship for those who rely on the provisions that have already been implemented.
"Defendants will appeal both the Court’s judgment and the rulings that underlie it. This motion respectfully asks the Court to clarify the scope of its order, in particular that its declaratory judgment does not relieve the parties to this case of any obligations or deny them any rights under the Affordable Care Act while the judgment is the subject of appellate review, or, if the Court anticipated otherwise, to address specifically what the Court intends the parties’ obligations and rights to be under the judgment while appellate review is pending."
So the ball is now in Judge Vinson's court. He could effectively state that everything remains in place, and the ACA remains good law, pending appellate review. Or he could say that the United States is barred from implementing any aspect of the ACA, which would be the equivalent of an injunction. Or he could say something in between--that the United States is barred from implementing certain aspects of the ACA but not others (though it is unclear how such a middle ground could be squared with the substance of his opinion). And if he states that the United States is effectively enjoined from any sort of implementation, then the DOJ has clear grounds on which to seek a stay--or, more accurately, a clearer legal obligation that it can seek to have stayed.
Wednesday, February 16, 2011
Still no application for a stay
It has now been 16 days since Judge Vinson issued his opinion in Florida v. HHS, and the Department of Justice still has not sought a stay of the judgment. This even though Judge Vinson stated that he believed that a declaratory judgment was the functional equivalent of an injunction, at least as applied to the federal government.
One could reasonably surmise that, if DOJ has not yet sought a stay, then it is unlikely to ask for one. Of course, that could change if Judge Vinson enters an injunction to enforce the declaratory judgment--which could happen if one of the plaintiffs believes that the United States is not adhering to the terms of the judgment. But for now, an application for a stay seems unlikely.
As we have discussed before, the federal government's continued implementation of the ACA, even though Judge Vinson declared the entire Act unconstitutional, seems legal; a party does not technically violate a judgment when it takes action arguably inconsistent with a declaratory remedy. But one would have thought that, given several states' stances that they would halt implementation of the ACA, the United States would have wanted a stay if for no other reason than (a) to make its legal obligations perfectly clear, and (b) to alter the status quo, so that the country at large does not come to believe that the ACA is no longer in force.
But apparently the costs in seeking a stay--and there could be several strategic ones, not the least of which would be the implicit admission that the federal government needs a stay--outweigh the benefits, at least in the DOJ's eyes.
P.S. I should also note that the United States has not yet filed its notice of appeal, either. It has until April 2 to do so.
One could reasonably surmise that, if DOJ has not yet sought a stay, then it is unlikely to ask for one. Of course, that could change if Judge Vinson enters an injunction to enforce the declaratory judgment--which could happen if one of the plaintiffs believes that the United States is not adhering to the terms of the judgment. But for now, an application for a stay seems unlikely.
As we have discussed before, the federal government's continued implementation of the ACA, even though Judge Vinson declared the entire Act unconstitutional, seems legal; a party does not technically violate a judgment when it takes action arguably inconsistent with a declaratory remedy. But one would have thought that, given several states' stances that they would halt implementation of the ACA, the United States would have wanted a stay if for no other reason than (a) to make its legal obligations perfectly clear, and (b) to alter the status quo, so that the country at large does not come to believe that the ACA is no longer in force.
But apparently the costs in seeking a stay--and there could be several strategic ones, not the least of which would be the implicit admission that the federal government needs a stay--outweigh the benefits, at least in the DOJ's eyes.
P.S. I should also note that the United States has not yet filed its notice of appeal, either. It has until April 2 to do so.
New filings in U.S. Citizens Association v. Sebelius
The case currently pending before the United States District Court for the Northern District of Ohio (Judge David Dowd) is U.S. Citizens Ass'n v. Sebelius. Back in November, Judge Dowd granted the United States's motion to dismiss some of the plaintiffs' claims, but it denied the motion with respect to the claim that minimum essential coverage requirement exceeds Congress's enumerated powers.
In January, the parties filed their motions for summary judgment. And on Monday, they each filed their respective memoranda in opposition to the other's motion for summary judgment. You can access the memorandum filed by the U.S. Citizens Association et al. here, and you can access the United States's memorandum here.
In January, the parties filed their motions for summary judgment. And on Monday, they each filed their respective memoranda in opposition to the other's motion for summary judgment. You can access the memorandum filed by the U.S. Citizens Association et al. here, and you can access the United States's memorandum here.
Friday, February 11, 2011
Update on Baldwin v. Sebelius
With all of the other goings on in Virginia v. Sebelius and Florida v. HHS, I have neglected some happenings in Baldwin v. Sebelius, the case currently pending in the Ninth Circuit.
First, the appellants have filed their reply brief, which you can access here. That completes the briefing.
Second, the appellants have filed a petition seeking en banc review, which you can access here. This is not a petition for rehearing en banc, which is fairly common, but rather a request that the case be heard in the first instance by an en banc panel. (In the Ninth Circuit, because of its size, such panels comprise eleven judges.)
Third, although the district court in this case only reached the question of standing, the appellants have spent most of their time arguing the merits of section 1501(b)'s unconstitutionality. And given the current political dynamics, and depending on the composition of the panel drawn in the Ninth Circuit, it seems possible that the court would go ahead and reach the merits. Specifically, one could imagine a politically liberal panel wanting to issue an opinion that reaches the merits and upholds the ACA.
The Ninth Circuit has yet to set a date for argument. But given that briefing is already complete, it is conceivable that it will be the first ACA case argued in any court of appeals. Thus, if the court reaches the merits, there is the possibility it will constitute the first appellate word on the minimum coverage provision's constitutionality.
First, the appellants have filed their reply brief, which you can access here. That completes the briefing.
Second, the appellants have filed a petition seeking en banc review, which you can access here. This is not a petition for rehearing en banc, which is fairly common, but rather a request that the case be heard in the first instance by an en banc panel. (In the Ninth Circuit, because of its size, such panels comprise eleven judges.)
Third, although the district court in this case only reached the question of standing, the appellants have spent most of their time arguing the merits of section 1501(b)'s unconstitutionality. And given the current political dynamics, and depending on the composition of the panel drawn in the Ninth Circuit, it seems possible that the court would go ahead and reach the merits. Specifically, one could imagine a politically liberal panel wanting to issue an opinion that reaches the merits and upholds the ACA.
The Ninth Circuit has yet to set a date for argument. But given that briefing is already complete, it is conceivable that it will be the first ACA case argued in any court of appeals. Thus, if the court reaches the merits, there is the possibility it will constitute the first appellate word on the minimum coverage provision's constitutionality.
Virginia v. Sebelius docketed at the Supreme Court
The docket number is 10-1014, and you can view the official entries here. The United States's response (if it chooses to file one) is currently due March 14, though it could seek an extension.
Walsh on the lack of subject matter jurisdiction in Virginia v. Sebelius
Professor Kevin Walsh (University of Richmond) has posted a fascinating article on SSRN (which you can access here) arguing that the federal courts lack statutory subject matter jurisdiction in Virginia v. Sebelius. More specifically, Walsh contends that the Supreme Court's prior interpretations of the Declaratory Judgment Act preclude a state from seeking a declaration that its law is not preempted by federal law. A state would have standing to seek such a declaration if it would also have standing to seek an injunction, but a state has no right to seek coercive relief against the federal government in the enforcement of federal law against the states' citizens. Hence, there is no jurisdiction. (Presumably this applies to the states in Florida v. HHS as well, insofar as they are challenging the minimum coverage requirement.) Definitely worth a read.
Wednesday, February 9, 2011
The precise flaw in Virginia's claim to standing
On page 5 of its petition for certiorari, Virginia states as follows (as part of its "Statement of the Case"):
"The Attorney General of Virginia has the duty to defend the legislative enactments of the Commonwealth. Virginia Code §§ 2.2-507; 2.2-513. When the President signed PPACA on March 23, 2010, the validity of both the Federal and State enactments were drawn into question. If PPACA was supported by an enumerated power, then it would prevail under the Supremacy Clause. If not, the Health Care Freedom Act would be a valid exercise of the police powers reserved to the States. In order to resolve this conflict, Virginia filed a Complaint in the United States District Court for the Eastern District of Virginia for Declaratory and Injunctive Relief."
The precise problem with Virginia's argument (and the rulings of Judge Hudson and Judge Vinson on this point) is the italicized sentence. It is simply wrong that if the ACA is unconstitutional, the Virginia Health Care Freedom Act "would be a valid exercise of the police powers reserved to the States." If Virginia had enacted a law declaring that, as a matter of state law, no Virginia citizen shall be required to acquire health coverage, that would be a valid exercise of the state's legislative authority. But in our federal system, no state has the authority to control federal law, even as it operates within its borders. See McCulloch v. Maryland (on the question of the validity of Maryland's tax, not the discussion of the Necessary and Proper Clause).
Thus, the Virginia Health Care Freedom Act, from its inception, was never--and could never be--a valid exercise of the state's police powers, no matter the constitutional status of the ACA. It was void ad abnitio.
As a result, Virginia cannot possibly have standing to defend the validity, or "enforceability," of its Health Care Freedom Act. The constitutionality of the ACA has no impact on the validity of the Virginia law. The Virginia law is simply invalid regardless, insofar as it attempts to prohibit the regulation of its citizens by the federal government.
Thus, if Virginia has standing, it has to be for some other reason--some indirect way in which it is injured by its citizens' having to acquire health insurance (such as, perhaps, the increase in its Medicaid rolls).
"The Attorney General of Virginia has the duty to defend the legislative enactments of the Commonwealth. Virginia Code §§ 2.2-507; 2.2-513. When the President signed PPACA on March 23, 2010, the validity of both the Federal and State enactments were drawn into question. If PPACA was supported by an enumerated power, then it would prevail under the Supremacy Clause. If not, the Health Care Freedom Act would be a valid exercise of the police powers reserved to the States. In order to resolve this conflict, Virginia filed a Complaint in the United States District Court for the Eastern District of Virginia for Declaratory and Injunctive Relief."
The precise problem with Virginia's argument (and the rulings of Judge Hudson and Judge Vinson on this point) is the italicized sentence. It is simply wrong that if the ACA is unconstitutional, the Virginia Health Care Freedom Act "would be a valid exercise of the police powers reserved to the States." If Virginia had enacted a law declaring that, as a matter of state law, no Virginia citizen shall be required to acquire health coverage, that would be a valid exercise of the state's legislative authority. But in our federal system, no state has the authority to control federal law, even as it operates within its borders. See McCulloch v. Maryland (on the question of the validity of Maryland's tax, not the discussion of the Necessary and Proper Clause).
Thus, the Virginia Health Care Freedom Act, from its inception, was never--and could never be--a valid exercise of the state's police powers, no matter the constitutional status of the ACA. It was void ad abnitio.
As a result, Virginia cannot possibly have standing to defend the validity, or "enforceability," of its Health Care Freedom Act. The constitutionality of the ACA has no impact on the validity of the Virginia law. The Virginia law is simply invalid regardless, insofar as it attempts to prohibit the regulation of its citizens by the federal government.
Thus, if Virginia has standing, it has to be for some other reason--some indirect way in which it is injured by its citizens' having to acquire health insurance (such as, perhaps, the increase in its Medicaid rolls).
Virginia files its petition for cert at the Supreme Court
The Commonwealth of Virginia today has filed its petition for a writ of certiorari before judgment, pursuant to Supreme Court Rule 11, in Virginia v. Sebelius. You can access the petition here.
I will try to analyze the content of the petition later today and have a post up this evening. For now, let me reiterate two things: (1) it is extremely rare for the Court to grant cert before judgment--I do not think it has happened in 23 years, except to consolidate two cases or to GVR in light of a recent decision; and (2) setting that matter aside, there is a significant, lurking "vehicle problem" with Virginia's case, which is that there is good reason to believe that the Commonwealth lacks Article III standing.
Per Supreme Court rules, the United States is not required to respond. (The Department of Justice waived its right to file a brief in opposition in Baldwin v. Sebelius, where the plaintiffs similarly sought cert before judgment. That case is now pending in the Ninth Circuit.) If the United States does file a BIO, it is due in 30 days, on March 9, though the Department of Justice could seek an extension.
In the meantime, there will be no changes to the briefing and argument schedule in the Fourth Circuit.
UPDATE: Kevin Russell at SCOTUSblog (and a Supreme Court advocate in his own right) has this useful primer on the Court's granting of certiorari before judgment. The short of it is that the Court's historical practice strongly confirms that it is highly unlikely here.
I will try to analyze the content of the petition later today and have a post up this evening. For now, let me reiterate two things: (1) it is extremely rare for the Court to grant cert before judgment--I do not think it has happened in 23 years, except to consolidate two cases or to GVR in light of a recent decision; and (2) setting that matter aside, there is a significant, lurking "vehicle problem" with Virginia's case, which is that there is good reason to believe that the Commonwealth lacks Article III standing.
Per Supreme Court rules, the United States is not required to respond. (The Department of Justice waived its right to file a brief in opposition in Baldwin v. Sebelius, where the plaintiffs similarly sought cert before judgment. That case is now pending in the Ninth Circuit.) If the United States does file a BIO, it is due in 30 days, on March 9, though the Department of Justice could seek an extension.
In the meantime, there will be no changes to the briefing and argument schedule in the Fourth Circuit.
UPDATE: Kevin Russell at SCOTUSblog (and a Supreme Court advocate in his own right) has this useful primer on the Court's granting of certiorari before judgment. The short of it is that the Court's historical practice strongly confirms that it is highly unlikely here.
Tuesday, February 8, 2011
Sixth Circuit grants motion to expedite
This afternoon, the United States Court of Appeals for the Sixth Circuit granted the appellants' unopposed motion to expedite in Thomas More Law Center v. Obama. This means oral argument will occur during the session of court beginning May 30 and ending June 10. This still puts the case roughly three to four weeks behind Commonwealth v. Sebelius and Liberty University v. Geithner, which will be argued the week of May 10 (on the same day, before the same panel) in the Fourth Circuit. Query whether, depending on the ideological cast of the two panels, there will be some sort of a race between the circuits to issue the first appellate opinion on the issue. Ah, the fun never stops!
Thursday, February 3, 2011
District court dismisses complaint in Walters v. Holder (aka Bryant v. Holder)
United States District Judge Keith Starrett (S.D. Miss.) today issued a memorandum opinion and order dismissing the complaint in Walters v. Holder (and Bryant v. Holder) on the ground that the plaintiffs had failed to allege sufficient facts in their complaint to establish that they have Article III standing. You can access the opinion here.
There are two sets of plaintiffs in this case. First, there are ten private individuals who claim to be injured by the minimum coverage requirement. With respect to them, Judge Starrett held that they "have not plead sufficient facts to establish that they have standing to challenge the Constitutionality of the minimum essential coverage provision of the PPACA." This seems to be an exceedingly narrow, factbound holding. The judge took issue with their failure to allege that they will not be subject to the religious exemption, for instance, or that they would not qualify for the means-related exemption. Thus, it should be relatively simple for these plaintiffs to amend their complaint and re-instigate their challenge. Indeed, Judge Starrett dismissed the complaint without prejudice, giving the plaintiffs 30 days to do so and come back to the court with sufficient allegations to establish an injury in fact.
The other plaintiff is Mississippi Lieutenant Governor Phil Bryant. The court reached the same conclusion regarding the lack of sufficient, specific factual allegations that he will be harmed in his individual capacity by the individual mandate. Further, the court held that, to the extent Bryant was trying to assert the sovereign interests of the State of Mississippi (such as through the claim that the ACA violates the Tenth Amendment), he has no standing to do so.
Thus, the plaintiffs will have 30 days to amend their complaint, and the district court will consider anew the United States's motion to dismiss.
There are two sets of plaintiffs in this case. First, there are ten private individuals who claim to be injured by the minimum coverage requirement. With respect to them, Judge Starrett held that they "have not plead sufficient facts to establish that they have standing to challenge the Constitutionality of the minimum essential coverage provision of the PPACA." This seems to be an exceedingly narrow, factbound holding. The judge took issue with their failure to allege that they will not be subject to the religious exemption, for instance, or that they would not qualify for the means-related exemption. Thus, it should be relatively simple for these plaintiffs to amend their complaint and re-instigate their challenge. Indeed, Judge Starrett dismissed the complaint without prejudice, giving the plaintiffs 30 days to do so and come back to the court with sufficient allegations to establish an injury in fact.
The other plaintiff is Mississippi Lieutenant Governor Phil Bryant. The court reached the same conclusion regarding the lack of sufficient, specific factual allegations that he will be harmed in his individual capacity by the individual mandate. Further, the court held that, to the extent Bryant was trying to assert the sovereign interests of the State of Mississippi (such as through the claim that the ACA violates the Tenth Amendment), he has no standing to do so.
Thus, the plaintiffs will have 30 days to amend their complaint, and the district court will consider anew the United States's motion to dismiss.
Virginia to seek immediate review at the Supreme Court
Virginia attorney general Kenneth Cuccinelli has announced this morning that he will seek a direct appeal to the Supreme Court in Virginia v. Sebelius, skipping the Fourth Circuit. News stories are here, here, and here, and Cuccinelli's press release is here.
The relevant provision in the Supreme Court's rules is Rule 11, which provides as follows (in full):
Rule 11. Certiorari to a United States Court of Appeals Before Judgment
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. See 28 U.S.C. §2101(e).
It is extremely rare for the Court to grant certiorari before judgment of a court of appeals. (This procedure is quite different from taking an appeal from the judgment of a specially constituted three-judge district court, which is relatively common, such as this Term in Schwarzenegger v. Plata.) A quick Westlaw search (in which I certainly may have missed something) indicates that the last time the Court did so--setting aside cases in which the Court took a case and consolidated it with another one coming from the court of appeals, or simply granted cert to vacate and remand in light of a recent decision--was 23 years ago in United States v. Mistretta. There, the district court had declared the newly minted U.S. Sentencing Guidelines unconstitutional as a violation of separation of powers. And the need for quick judicial resolution was extremely pressing--it affected the sentencing of every single federal defendant in the country.
Here, although many people would like to know the answer, the urgency is not nearly so great. Moreover, for reasons that I explained yesterday, there is a serious question whether Virginia even has standing to press its claim that the minimum essential coverage requirement is unconstitutional.
Thus, it seems unlikely that the Court would grant Virginia's petition for cert. But of course, stranger things have happened. I was one of many who claimed that the Supreme Court would never want to get involved in a matter a politically dicey as the resolution of a presidential election.
UPDATE: The United States will, as expected, oppose a direct appeal to the Court. Here is the relevant paragraph from the N.Y. Times story: "Tracy Schmaler, a spokeswoman for the Justice Department, said the agency continued “to believe this case should follow the ordinary course” so that legal arguments could be fully developed before being presented to the Supreme Court. She pointed out that the insurance mandate does not take effect until 2014 and that the Fourth Circuit has already expedited its schedule by setting oral arguments for May."
The relevant provision in the Supreme Court's rules is Rule 11, which provides as follows (in full):
Rule 11. Certiorari to a United States Court of Appeals Before Judgment
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. See 28 U.S.C. §2101(e).
It is extremely rare for the Court to grant certiorari before judgment of a court of appeals. (This procedure is quite different from taking an appeal from the judgment of a specially constituted three-judge district court, which is relatively common, such as this Term in Schwarzenegger v. Plata.) A quick Westlaw search (in which I certainly may have missed something) indicates that the last time the Court did so--setting aside cases in which the Court took a case and consolidated it with another one coming from the court of appeals, or simply granted cert to vacate and remand in light of a recent decision--was 23 years ago in United States v. Mistretta. There, the district court had declared the newly minted U.S. Sentencing Guidelines unconstitutional as a violation of separation of powers. And the need for quick judicial resolution was extremely pressing--it affected the sentencing of every single federal defendant in the country.
Here, although many people would like to know the answer, the urgency is not nearly so great. Moreover, for reasons that I explained yesterday, there is a serious question whether Virginia even has standing to press its claim that the minimum essential coverage requirement is unconstitutional.
Thus, it seems unlikely that the Court would grant Virginia's petition for cert. But of course, stranger things have happened. I was one of many who claimed that the Supreme Court would never want to get involved in a matter a politically dicey as the resolution of a presidential election.
UPDATE: The United States will, as expected, oppose a direct appeal to the Court. Here is the relevant paragraph from the N.Y. Times story: "Tracy Schmaler, a spokeswoman for the Justice Department, said the agency continued “to believe this case should follow the ordinary course” so that legal arguments could be fully developed before being presented to the Supreme Court. She pointed out that the insurance mandate does not take effect until 2014 and that the Fourth Circuit has already expedited its schedule by setting oral arguments for May."
Wednesday, February 2, 2011
No U.S. application for a stay as of yet
There is no entry on the PACER docket for case number 3:10-CV-00091 in the United States District court for the Northern District of Florida indicating that the United States has sought a stay of the judgment pending appeal in Florida v. HHS. Nor is there any indication on PACER that the case has been docketed yet by the United States Court of Appeals for the Eleventh Circuit. Hence, we seem to be in a bit of limbo until the Department of Justice seeks a stay.
As best I can tell, the United States really needs a stay of the judgment--if not for technical legal reasons, at least for reasons of clarity and public relations. As we all have heard, several states are announcing that they now have no obligation to implement any aspects of the ACA. Moreover, various public officials and commentators are asserting that the federal government is acting unlawfully to the extent it is taking any steps to implement or enforce any aspect of the ACA.
Technically, this is incorrect. A declaratory judgment is just that: a declaration. Thus, it cannot really be violated in a strict legal sense. But in issuing a declaratory judgment and denying the plaintiffs their request for an injunction, Judge Vinson stated that, in circumstances such as this, declaratory relief is "the functional equivalent" of an injunction, meaning he fully expects the United States to respect his decision as if it were an injunction. Thus, in order to dispel any notion that it it flouting a binding judicial order, the DOJ almost certain needs to seek a stay.
Perhaps there are a range of strategic questions that the Department's civil appellate lawyers need to sort out, maybe with some help from the White House Counsel's office, as well as the Office of the Solicitor General, before seeking the stay. Goodness knows, there are a whole lot of moving pieces here. But one would think that the U.S. really needs the stay, and it would apply for it sooner rather than later.
As best I can tell, the United States really needs a stay of the judgment--if not for technical legal reasons, at least for reasons of clarity and public relations. As we all have heard, several states are announcing that they now have no obligation to implement any aspects of the ACA. Moreover, various public officials and commentators are asserting that the federal government is acting unlawfully to the extent it is taking any steps to implement or enforce any aspect of the ACA.
Technically, this is incorrect. A declaratory judgment is just that: a declaration. Thus, it cannot really be violated in a strict legal sense. But in issuing a declaratory judgment and denying the plaintiffs their request for an injunction, Judge Vinson stated that, in circumstances such as this, declaratory relief is "the functional equivalent" of an injunction, meaning he fully expects the United States to respect his decision as if it were an injunction. Thus, in order to dispel any notion that it it flouting a binding judicial order, the DOJ almost certain needs to seek a stay.
Perhaps there are a range of strategic questions that the Department's civil appellate lawyers need to sort out, maybe with some help from the White House Counsel's office, as well as the Office of the Solicitor General, before seeking the stay. Goodness knows, there are a whole lot of moving pieces here. But one would think that the U.S. really needs the stay, and it would apply for it sooner rather than later.
The Fourth Circuit cases jump to the head of the line
The ACA case currently furthest along in briefing before a Court of Appeals is Thomas More Law Center v. Obama, for which all the briefs have now been filed at the Sixth Circuit. The appellants have now asked the court to expedite oral argument and a decision. In that expedite request, though, the appellants (unopposed by the United States, apparently) have asked that the court hear the case during its session that runs from May 30 to June 10. Thus, even if the court grants the motion to expedite, the case would be heard roughly a month after the Fourth Circuit hears arguments in Virginia v. Sebelius and Liberty University v. Geithner. As a result, the Fourth Circuit cases are now in the lead, so to speak, in the race to the Supreme Court. (For reasons I explained earlier today, though, the Court may well wait for Florida v. HHS.)
Why the states lack standing to challenge the minimum coverage provision
One part of Judge Vinson's opinion that has thus far been largely overlooked is his holding that two states that have enacted so-called "health freedom" laws (Idaho and Utah) have Article III standing to challenge the individual mandate. The reasoning is that the ACA, by requiring all Americans (with some exceptions) to acquire health coverage, effectively preempts the states' laws to the contrary. And this preclusion of the states' capacity to enforce a duly enacted state statute (or state constitutional provision) is an injury to the state's sovereignty, thus giving the state standing.
This was precisely the reasoning that Judge Hudson adopted in Virginia v. Sebelius, in his August decision denying the United States's motion to dismiss. And Judge Vinson stated that he was effectively adopting Judge Hudson's rationale.
The problem is that it is wrong--indeed, I think flat wrong--on the law. I think a fairly objective analysis of the issue dictates that the states themselves should be unable to challenge the individual mandate, unless there is some other injury in fact, aside from this inability to enforce their "health freedom" laws, that the states can establish. Here is why.
This was precisely the reasoning that Judge Hudson adopted in Virginia v. Sebelius, in his August decision denying the United States's motion to dismiss. And Judge Vinson stated that he was effectively adopting Judge Hudson's rationale.
The problem is that it is wrong--indeed, I think flat wrong--on the law. I think a fairly objective analysis of the issue dictates that the states themselves should be unable to challenge the individual mandate, unless there is some other injury in fact, aside from this inability to enforce their "health freedom" laws, that the states can establish. Here is why.
Tuesday, February 1, 2011
More on the stay issue
It appears that the Department of Justice (that is, Beth Brinkmann, among others) is trying to figure out whether it needs to obtain a stay of Judge Vinson's ruling in order to legally move forward with the implementation and enforcement of those parts of the ACA that have already gone into effect (or will soon do so). This is a point of civil procedure to which I don't know the answer. There is no injunction in place, as the judge only issued a declaratory judgment. But generally such judgments have the same effect as injunctions. At a minimum, the United States may need a stay of the judgment to be sure it is not violating a binding court order.
If so, I would guess that this question--of whether a stay of the judgment pending appeal should be entered--will get to the Supreme Court no matter what. After writing the post last night, I realized that, even if the District Court or the Eleventh Circuit grants the stay, the plaintiff states will be able to appeal that ruling to the Supreme Court. And why wouldn't they? It would only mean more media coverage for their efforts. So, assuming the DOJ seeks a stay--again, I do not know whether it needs one--then I think this matter is headed to the Court.
One other point: if the lower court grants a stay, and the Supreme Court decides to let that stay remain in place, that will not signal much. That is not a whole lot different from a denial of certiorari. If the lower courts have denied the stay, and it is the United States that comes to the Court seeking one, what the Court does will say much more. Either it will be denying the request of the Solicitor General merely to allow the constitutional provisions of the Act to be implemented pending the ultimate resolution of the constitutionality of the individual mandate, or it will be reaching down to grant a stay when it was denied by the lower courts. Either of these would be a decent signal--although obviously not dispositive--of what the justices think of the states' claims on the merits.
All very interesting.
Monday, January 31, 2011
How Judge Vinson's decision might force the Supreme Court to show its hand
Perhaps this remains a long shot. But Judge Vinson's decision to hold that the minimum essential coverage provision is unseverable from the rest of the Act, and thus that the entire ACA is unconstitutional, might have set a series of events in motion that could force the Supreme Court to show its hand--or at least part of it--sooner rather than later.
Given that a binding judicial order has now declared the entire Act unconstitutional, including scores of provisions that the federal government is currently implementing or enforcing, the United States will assuredly seek a stay of the mandate pending appeal. Indeed, the Department of Justice will likely seek such a stay from Judge Vinson himself, and if that is unsuccessful, from the United States Court of Appeals for the Eleventh Circuit.
I am inclined to think that either Judge Vinson or the Eleventh Circuit would grant such a stay. It is one thing to declare perhaps the most significant piece of legislation in a generation unconstitutional. But it is something else still to call to a complete halt any implementation of the perfectly constitutional aspects of that law based on the unconstitutionality of a single (albeit quite important) component of the Act that will not take effect for 35 months.
But stranger things have happened. And if neither Judge Vinson nor the Eleventh Circuit grant the stay, there would remain only one other place to turn: the Supreme Court.
Of course, the question as to whether a stay pending appeal is appropriate is legally distinct from whether Judge Vinson's underlying decision was correct. A justice could well vote to grant the stay while ultimately voting to declare the ACA unconstitutional. But the two are not entirely unrelated, either. Moreover, the political spotlight on the Court would be intense, potentially leading the justices to act a bit differently--knowing that, however they act, it will be understood as a signal as to how they are apt to ultimately decide the matter.
Again, I do not think this scenario is terribly likely. It is more probable that the United States gets a stay from a lower court. But the chances of the matter getting to the Supreme Court are non-trivial. And if it does, we might have a much better idea, and quite soon, of what the justices think about the ACA.
Given that a binding judicial order has now declared the entire Act unconstitutional, including scores of provisions that the federal government is currently implementing or enforcing, the United States will assuredly seek a stay of the mandate pending appeal. Indeed, the Department of Justice will likely seek such a stay from Judge Vinson himself, and if that is unsuccessful, from the United States Court of Appeals for the Eleventh Circuit.
I am inclined to think that either Judge Vinson or the Eleventh Circuit would grant such a stay. It is one thing to declare perhaps the most significant piece of legislation in a generation unconstitutional. But it is something else still to call to a complete halt any implementation of the perfectly constitutional aspects of that law based on the unconstitutionality of a single (albeit quite important) component of the Act that will not take effect for 35 months.
But stranger things have happened. And if neither Judge Vinson nor the Eleventh Circuit grant the stay, there would remain only one other place to turn: the Supreme Court.
Of course, the question as to whether a stay pending appeal is appropriate is legally distinct from whether Judge Vinson's underlying decision was correct. A justice could well vote to grant the stay while ultimately voting to declare the ACA unconstitutional. But the two are not entirely unrelated, either. Moreover, the political spotlight on the Court would be intense, potentially leading the justices to act a bit differently--knowing that, however they act, it will be understood as a signal as to how they are apt to ultimately decide the matter.
Again, I do not think this scenario is terribly likely. It is more probable that the United States gets a stay from a lower court. But the chances of the matter getting to the Supreme Court are non-trivial. And if it does, we might have a much better idea, and quite soon, of what the justices think about the ACA.
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