A small (but interesting) point of law related to the order

In reading Judge Vinson's order, a small (but perhaps important) question occurred to me. I don't know the answer, but perhaps someone out there does.

The second factor to consider in deciding whether a stay is warranted is whether the applicant will suffer irreparable injury. In conducting this analysis, Judge Vinson--it seems rightly--considered the potential injury to both sides: what would be the injury to the United States from a complete halt to implementation, and what would be the injury to the plaintiffs from the Act's continued implementation.  

In analyzing this second question--the potential harm to the plaintiffs from continued implementation--Judge Vinson did not just inquire into the injury from continued implementation of the minimum coverage provision (which is not set to go into effect until January 1, 2014). Rather, he asked whether the plaintiffs would be harmed by the continued implementation of any part of the Act (99% of which, all agree, are perfectly constitutional).

My question is this: when the sole reason these other portions of a statute have been declared void are because the one provision declared unconstitutional has been determined to be unseverable from the rest of the Act, is it appropriate in evaluating the "irreparable injury" to the plaintiff to consider the portions of the Act that have effectively been judged constitutional?

Again, I do not know the law here. But at first blush, that seems like a sort of "bootstrapping" that goes beyond the scope of the relevant "injury" for purposes of the litigation.

P.S. Just to be clear, this issue is purely academic, at least for now, given that Judge Vinson granted the stay regardless (that is, even considering this harm to the plaintiffs that arguably should not have been within the scope of the inquiry).

A very quick summary of the order

After summarizing his initial ruling, Judge Vinson's order today essentially does three things:

1. It clarifies that his original declaratory judgment was indeed intended to have the practical effect of an injunction. Thus, of its own force, that judgment effectively enjoins the United States from implementing any part of the ACA, since the judgment declared the entire Act unconstitutional.
2. It then treats the United States's motion to clarify as a motion for a stay of judgment pending appeal, and it evaluates that motion using the four traditional criteria: (1) whether the applicants have made a strong showing that they are likely to prevail; (2) whether the applicants will be irreparably injured if a stay is not granted; (3) whether granting the stay will substantially injure the other parties interested in the proceeding; and (4) “where the public interest lies.”
3. Applying those criteria, it concludes that (1) the United States (actually both sides) has made a strong showing that they will prevail; (2) both sides have shown possible irreparable injury, but the factor weighs in favor of a stay; (3) immediate halt could cause various problems to those not party to the suit, such as those trying to figure out the state of the law in Michigan, and the people of Washington state; and (4) the "public interest" lies in a speedy resolution of the controversy.
4. Thus, it grants the United States a stay of judgment pending appeal contingent on two conditions: (1) that the United States files a notice of appeal within seven days, and (2) it seeks expedited appellate review of the district court's judgment, either in the Eleventh Circuit or at the Supreme Court, pursuant to Supreme Court Rule 11 (as Virginia has done in Virginia v. Sebelius).

And that is essentially it--at least as to the substance. The tone is one of strong displeasure and frustration with the DOJ, bordering on contempt.

Judge Vinson's "clarification"

Just in case anyone took Judge Vinson's grant of a stay as somehow a backtracking from his original ruling, here is the critical, summarizing paragraph from today's order (which seems to be, rightly or wrongly, virtually dripping with contempt for DOJ):

So to “clarify” my order and judgment: The individual mandate was declared unconstitutional. Because that “essential” provision was unseverable from the rest of the Act, the entire legislation was void. This declaratory judgment was expected to be treated as the “practical” and “functional equivalent of an injunction” with respect to the parties to the litigation. This expectation was based on the “longstanding presumption” that the defendants themselves identified and agreed to be bound by, which provides that a declaratory judgment against federal officials is a de facto injunction. To the extent that the defendants were unable (or believed that hey were unable) to comply, it was expected that they would immediately seek a stay of the ruling, and at that point in time present their arguments for why such a stay is necessary, which is the usual and standard procedure. It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to “clarify.”

So tell us how you really feel, Judge.

Vinson issues stay

Judge Vinson has just entered an order granting the United States's Motion to Clarify and granting a stay of his judgment pending appeal, conditioned on (1) the United States's filing its notice of appeal within seven days, and (2) its seeking expedited review on appeal in the Eleventh Circuit. You can access the order here.  

More to follow shortly.

Appellants seek en banc hearing in Mead v. Holder

The most recent judicial decision to reach the merits of the ACA's constitutionality was that of Judge Gladys Kessler (D.D.C.) in Mead v. Holder, which held that the minimum essential coverage requirement is within Congress's power to regulate interstate commerce. Judge Kessler handed down her decision eight days ago, February 22.

The plaintiff-appellants (Margaret Peggy Lee Mead et al.) have since filed their notice of appeal. And yesterday they filed a petition in the Court of Appeals for the District of Columbia, pursuant to Federal Rule of Appellate Procedure 35, seeking initial review by an en banc panel (rather than the standard three-judge panel). (You might recall that the plaintiff-appellants in Baldwin v. Sebelius filed a similar petition in the Ninth Circuit a few weeks ago.)

The D.C. Circuit docket number for the case is 11-5047. And you can access the appellants' petition for initial hearing  en banc here.   

Still waiting on Judge Vinson

Judge Vinson has yet to rule on the United States's Motion to Clarify. But this morning he did issue an order granting Washington Governor Christine Gregoire leave to file her "Amicus Memorandum in Support of Continuing Implementation of the Affordable Care Act in the State of Washington." 

Nothing yet

It is now past 5:00 p.m. in Pensacola, and Judge Vinson has yet to issue a decision in response to the United States's Motion to Clarify. Presumably, this means we wait until at least tomorrow.

Even if . . .

There is one pretty important thing to keep in mind as we await Judge Vinson's decision on the United States' Motion to Clarify.

That is, even if Judge Vinson clarifies that his declaratory judgment indeed has the force of an injunction, and thus that it precludes the United States from enforcing any part of the ACA, he is still apt to grant the United States a temporary stay (for instance, of 5 days) to seek a stay from the Eleventh Circuit. I hesitate to say anything is truly "likely" in this litigation odyssey, but such a move does seem probable. It would be a standard courtesy to the United States, especially in light of the practical complications raised by an immediate halt to implementation highlighted in the DOJ's filings.

So, even if Judge Vinson's ruling goes against the United States, the DOJ will likely have time to seek a stay at the Court of Appeals before it must completely "cease and desist" implementing any part of the Act.

U.S. reply in Florida v. HHS

Late today, the DOJ filed its "Reply in Support of Defendant's Motion to Clarify." You can access the brief here.

The brief makes five basic arguments (and I'm quoting from its headings):

1. Despite plaintiffs’ claim that the declaratory judgment operates as an immediately effective injunction, their statements and actions are consistent with defendants’ understanding.

2. Neither plaintiffs nor the [district court] addressed the impact of treating the [district court’s] declaration as an injunction immediately effective as to the hundreds of provisions of the ACA, a fact that further supports defendants’ understanding.

3. The difficulties with plaintiffs’ position are compounded by the uncertainties about who is entitled to rely on the judgment.

4. Defendants’ understanding of the anticipated effect of the [district court’s] order is consistent with the position defendants took in their brief on the merits.

5. It is appropriate for defendants to have analyzed the [district court’s] order and now to seek clarification.

How Judge Vinson ultimately responds to this "Motion to Clarify" will be quite interesting--perhaps the most interesting subplot yet to develop in this web of litigation.

Washington Governor Gregoire files amicus in support of continued ACA implementation

The procedural twists and turns get stranger by the day.

Washington Governor Christine Gregoire has filed a document that I have never heard of--an amicus memorandum in support of continued implementation--in Florida v. HHS. The memo argues that the states should be required to continue to implement the ACA pending appeal of Judge Vinson's ruling.

You can access Governor Gregoire's memorandum here.

UPDATE: The memorandum specifically addresses the situation in Washington, where the Governor is charged with the responsibility of implementing the ACA, but the Attorney General is given litigating authority. Thus, in supporting the non-severability of the individual mandate, says Governor Gregoire, the Attorney General is causing all sorts of problems for the state and its citizens--problems with respect to which the Attorney General has no responsibility. The brief is not only interesting in its explication of what can happen when a state attorney general and governor have opposing policy interests, but also in spelling out some of the practical complications that would ensue if Judge Vinson orders a complete halt to ACA implementation.

The United Sates files its opening brief in Virginia v. Sebelius

This afternoon DOJ filed its brief for the appellant in Virginia v. Sebelius. As in its recent filing in Liberty University v. Geithner, Acting Solicitor General Neal Katyal's name is atop the list of counsel.

You can access the brief here.

U.S. reply due today in Florida v. HHS

The DOJ's reply brief concerning its Motion to Clarify is due today in the Northern District of Florida. One would expect very little new to appear in the reply brief, and that Judge Vinson already has his ruling largely completed. Thus, we can probably expect a ruling this week, perhaps as soon as tomorrow.

We will post the United States's brief as soon as it is up on PACER.

One more

One more amicus brief has been filed at the Fourth Circuit in Liberty University v. Geithner, this by the National Women's Law Center et al. You can access the brief here.

Another amicus

The Economic Scholars have submitted their amicus brief in Liberty University v. Geithner, and you can access it here.

Amicus briefs in support of the United States in Liberty University v. Geithner

Today is the due date for briefs as amicus curiae in support of the appellee United States in Liberty University v. Geithner at the Fourth Circuit. As of 4:00 EST, six such briefs have been filed by the following parties:

*  Constitutional law professors Jack Balkin, Gillian Metzger, and Trevor Morrison, available here.

* Senator Majority Leader Harry Reid, House Democratic Leader Nancy Pelosi, and a variety of Members of Congress (co-authored by former acting Solicitor General Walter Dellinger), available here.

* The American Hospital Association et al., available here.

* The American Nurses Association et al., available here.

* The American Civil Liberties Union and the ACLU of Virginia, available here (addressing only the RFRA claim).

* The American Association of People with Disabilities et al., available here.

A scorecard on the taxing power question

The decision from Judge Kessler (D.D.C.) now makes it 3-2 in favor of the ACA in district court decision deciding whether the minimum essential coverage requirement is within Congress's authority to regulate commerce among the several states. It is also worth noting, though, that the United States is now a rather startling 0-for-6 in district court decisions reaching the merits of whether ACA 1501(b) is a valid exercise of Congress's taxing power. Those decisions holding that it is not are as follows:

* Virginia v. Sebelius (E.D. Va.)

* Florida v. HHS (N.D. Fla.)

* Mead v. Holder (D.D.C.)

* Goudy-Bachman v. HHS (M.D. Pa.)

* Liberty University v. Geithner (W.D. Va.)

* U.S. Citizens Association v. Sebelius (N.D. Ohio) (at least implicitly, through Judge Dowd's adoption of Judge Vinson's analysis as to why the Anti-Injunction Act does not deprive the court of jurisdiction)

A small kerfuffle between Judge Vinson and the Eleventh Circuit

As you may have now seen, the United States Court of Appeals for the Eleventh Circuit (per Judge Black and Judge Wilson) issued this order to Judge Vinson, correcting an action Judge Vinson had taken last week. Specifically, shortly after Judge Vinson handed down his decision in Florida v. HHS declaring the ACA unconstitutional, a non-party (one Robert P. Smith, Jr.) filed a notice of appeal with the district court. On February 2, Judge Vinson issued this order, effectively dismissing the appeal on the ground that there was no legal basis on which a non-party like Smith could appeal the decision.

As the Eleventh Circuit explained in its order yesterday, a federal district court lacks the authority to dismiss an appeal. Rather, it is required to take the ministerial step of forwarding the notice of appeal to the circuit court, which then has the jurisdiction to dismiss it if it lacks any legal basis.

Some are already making a bit of a deal out of this. But we should keep a few things in mind: (1) it has to be extraordinarily unusual for a non-party to seek to appeal a district court's decision, so Judge Vinson's unfamiliarity with this rule is entirely understandable; (2) his substantive conclusion that a non-party has no right to appeal the decision is clearly correct; and (3) the Eleventh Circuit's order is not obviously some "warning shot across the bow," as it had little choice but to issue some sort of public, corrective order once Smith asked for one. It is not as if they could have just discreetly called Judge Vinson on the phone and handled it that way.  

A slight shift in the United States's argument

This may really be not much at all--a slight shift in framing and semantics. But given that we are all analyzing even the smallest of moves in this drama, I thought it was worth mentioning something slightly different in the argument presented in the DOJ's brief filed last Friday in Liberty University v. Geithner.

Of course, the federal government's frontline argument is that the minimum essential coverage requirement is a valid exercise of the commerce power. And its argument on this score has two distinct components, either of which would independently justify the individual mandate: (1) the decision as to whether to purchase health coverage is an economic activity, and thus falls within the commerce power under the third prong of United States v. Lopez (activities substantially affecting interstate commerce); and (2) even if this "economic decision" is not considered an "economic activity," Congress is not limited to regulating "economic activities" when reaching that conduct (whether it is an activity or passive inactivity) is integral to the functioning of a broader regulatory scheme, which scheme plainly regulates an interstate market. (This latter argument typically relies on Wickard, Raich, and the Necessary and Proper Clause.) That is, the minimum coverage requirement is justified as necessary to the broader regulation of the health insurance and health care services markets, especially those imposing the guarantee issue and community rating requirements on the insurance industry.

In the Liberty University brief, DOJ seems to have slightly altered its framing of activity being regulated, which potentially affects both of these arguments. Here is the first subheading in the brief:

The  minimum coverage provision regulates the  practice  of obtaining health care services without insurance, a practice that shifts significant health care costs to other participants in the health care market.

In other words, the regulated activity is not the "economic decision" of whether to acquire coverage or how to finance care (as three district courts have now held in upholding ACA 1501(b)). Rather, the regulated activity is indeed an activity, and by anyone's lights: the activity of acquiring health care services without insurance.

The challengers will of course respond that many of the uninsured will not actually obtain medical services, so the regulation reaches beyond those persons that Congress has the jurisdiction to touch. But then the analogy to Wickard and Raich is even stronger: Congress has no obligation to exempt out those individuals who are in a class that, as a class, are plainly engaged in interstate commerce. And the uninsured, as a class, consume roughly $50 billion in uncompensated care annually.

The better retort, I think, will be that the minimum coverage provision does not actually regulate the activity obtaining of health care services. Rather, it regulates a different act (or non-act): obtaining coverage. The advantage in this shift for DOJ, though, is that it potentially takes the issue out of the realm of the activity-inactivity distinction, and instead frames it as a matter of whether it is appropriate to mandate coverage as a regulation of the activity of obtaining health care services without insurance. The Supreme Court has always been deferential to Congress's judgment as to the appropriateness of means.

Again, this may be much ado about some small semantics. But then again, what is constitutional doctrine if not a complex game of words and phrases, with only a tenuous connection to empirical reality?

Amicus brief in support of the United States due tomorrow in Liberty University v. Geithner

The briefs in support of the appellee United States are due tomorrow at the Fourth Circuit in Liberty University v. Geithner. We will try to post them here as they become available on PACER.

Also, the United States's brief in NJ Physicians v. Obama was originally due at the Third Circuit tomorrow, but the court has granted DOJ an extension to March 14.

DOJ will presumably be filing its reply brief Monday with Judge Vinson on the matter of its Motion to Clarify in Florida v. HHS.

Plaintiffs file their memo in opposition to DOJ's motion to clarify

As requested by Judge Vinson's order of Friday, the plaintiffs in Florida v. HHS have filed their memorandum in opposition to the United States's Motion to Clarify, which it filed last week. You can access the plaintiffs' memo here.

The plaintiffs make three basic arguments: (1) the judgment is clear, and thus does not require any clarification; (2) the declaratory judgment effectively has the force of an injunction as it now stands, as the parties are bound to abide by its declaration of the rights of the parties; and (3) the United States has sought this clarification in order to avoid seeking a stay, because it knows it cannot meet the requirements for the granting of a stay.

DOJ must now file its reply memorandum by Monday. Presumably Judge Vinson will rule shortly thereafter, perhaps as soon as the middle of next week.