Some points from the SG's BIO

Here is a list of the more significant submissions advanced by the United States in its brief in opposition to certiorari:

* The issue of whether the minimum coverage requirement exceeds Congress's enumerated powers is already under expedited review in three courts of appeals (the CA4, CA6, and CA11) and may soon be so in a fourth (the CADC). Given that Virginia has not sought expedited consideration of this petition, even if the Court were to grant this petition, it would not hear the case until next Term. But given these other appeals, that is when the matter is likely to arrive at the Court regardless. In other words, granting this petition would not significantly accelerate the Court's review of the matter.

* On the other side of the ledger, it would deprive the Court of the benefit of the consideration of the issue by several courts of appeals. In other words, there is a substantial cost, but no significant upside.

* Any of the resources Virginia might have to devote to implementing the ACA in the interim are not at all attributable to the minimum coverage provision, but to other aspects of the Act that it has not challenged.

* Regardless, the costs alleged by Virginia, seen in context, are not substantial.

* This case "does not resemble the handful of cases in which this Court has taken the extraordinary step of
granting certiorari before judgment." The cases in which the Court has granted such review have generally "presented risks of extraordinary disruption and irreparable harm." This is not like Mistretta, where thousands of federal defendants potentially would have required resentencing, or United Mine Workers, where an ongoing strike threatened the jobs of more than 5 million people.

* Moreover, even if this were a case that met the criteria of Rule 11, there is a serious standing problem: "This Court’s precedents, however, foreclose a suit by a State against the federal government 'to protect her citizens from the operation of federal statutes.'"  

* The Virginia Health Care Freedom Act cannot create standing for the Commonwealth where it would not otherwise exist. Otherwise, states could pass similar "declaratory" laws and thus manufacture Article III standing to challenge the application of federal statutes within their borders.

* Cases like Massachusetts v. EPA are distinguishable, as there existed an injury to the state's own, separate interests as an entity (such as the erosion of its own land). Here, the only purpose of Virginia's law is to immunize its citizens from federal regulation.

U.S. files its brief in opposition at the Supreme Court

Late this afternoon, the Office of the Solicitor General filed its brief in opposition to the petition for writ of certiorari before judgment in Virginia v. Sebelius, No. 10-1014. You can access the brief here (and you can also find it here, at SCOTUSblog).

Here is the crux of the SG's position, clipped from the introductory paragraph to the brief's argument section:

"The parties are currently briefing this case in the court of appeals on an expedited basis. The opening brief for the Secretary of Health and Human Services has already been filed in that court (along with 19 amici briefs), and oral argument is scheduled to be held in approximately 60 days. Especially given the court of appeals’ imminent consideration of this case, there is no basis for short-circuiting the normal course of appellate review by granting a writ of certiorari before judgment. Moreover, this case would make a poor vehicle to address the constitutionality of the Affordable Care Act’s minimum coverage provision because petitioner’s claim to standing rests entirely on a novel “declaratory” state statute (Pet. App. 66), and that threshold jurisdictional question could readily prevent the Court from reaching the merits of petitioner’s claim.  The petition should be denied."

In other words, (1) the Court is likely to get this issue (if not this precise case) next Term regardless, and (2) this particular case has a glaring vehicle issue.

The Supreme Court will now schedule consideration of Virginia's petition for an upcoming conference of the justices, likely in the next three weeks. Following that conference, the Court will issue its decision as to whether to grant review as part of the next order list (though sometimes cases are re-listed by the justices, causing some delay before resolution).

Nothing yet at the Supreme Court

By now, presumably the United States has filed its brief in opposition at the Supreme Court in Virginia v. Sebelius. But the filing of the brief has not yet been noted on the Supreme Court's docket available through the Court's web site. Nor is the brief yet available at other sites, such as SCOTUSblog.

Again, I will try to post a copy as soon as I can locate one.

U.S. files its brief as appellee in New Jersey Physicians v. President

DOJ today filed its brief as appellee in the Third Circuit in New Jersey Physicians v. President of the United States. The brief is quite limited, devoting all of nine pages to the substance of its argument. The district court in this case--on very narrow, fact-specific grounds--held that the plaintiffs lacked standing to challenge the individual mandate. The United States argues here, in narrow, fact-specific ways, that this judgment was correct.

Here is the entire gist of the brief, arguing that the three plaintiffs lack standing:

"Patient Roe does not allege that he is experiencing present economic injury attributable to the Act’s minimum coverage provision, which will not take effect until 2014. His circumstances are thus unlike those of plaintiffs in other cases who were found to have standing to challenge the minimum coverage provision based on their allegations of present economic harm. Dr. Criscito makes no allegations regarding his insurance status, and relies primarily on the alleged impact that the minimum coverage provision will have on his medical practice when the provision takes effect in 2014. These allegations do not establish present injury and, moreover, his claims about the impact that the provision will have on his medical practice have “no basis” in the Act. [New Jersey Physicians]'s standing is predicated on the standing of the only member identified in the amended complaint, Dr. Criscito. Because Dr. Criscito lacks standing, NJP lacks standing to sue as well."  

You can access the brief here.

U.S. BIO due today

Today is the due date for the United States's brief in opposition to Virginia's petition for a writ of certiorari before judgment in Virginia v. Sebelius. Conceivably, DOJ could waive its right to respond; it did so this fall in Baldwin v. Sebelius, the case from the Ninth Circuit in which the plaintiffs sought certiorari before judgment this past fall. But that seems unlikely here given that (1) this case has a much higher profile, (2) the district court here, unlike the district court in Baldwin, reached the merits of whether the ACA is constitutional, and (3) failing to respond at all might create a number of political problems, regardless of its defensibility in purely legal terms.

We will have the BIO up here as soon as it becomes available.

Eleventh Circuit sets briefing schedule for Florida v. HHS

And the schedule is substantially more expedited than the DOJ had requested. Here are the relevant dates:

April 4: U.S. opening brief due

May 4: plaintiffs' brief as appellee/opening brief as cross-appellant due

May 18: U.S. reply brief/brief as cross-appellee due

May 25: plaintiffs' reply brief as cross-appellant due

Significantly, this schedule makes it possible for the court to hear the case en banc the week of June 6. Today's order notes that the plaintiffs' petition for such hearing remains pending.

Given the expedited schedules being adopted by the courts of appeals in most of the cases, it now seems clear that the Supreme Court is likely to hear and decide the case during it's 2011 October Term. And that means that the Court is likely to render it's decision before the 2012 election.

Fourth Circuit sets oral argument for May 10

In an order yesterday, the Fourth Circuit set a date for arguments in both Liberty University v. Geithner and Virginia v. Sebelius: It is Tuesday, May 10, in Richmond, Virginia. Per Fourth Circuit practice, the identity of the three judges on the panel will not be disclosed until the morning of the argument.

Mead v. Holder now Seven-Sky v. Holder

The lead plaintiff (Margaret Peggy Lee Mead) in the case currently before the D.C. Circuit, formerly known as Mead v. Holder, has formally withdrawn from the case. The lead plaintiff is now Susan Seven-Sky, and the case is captioned Seven-Sky v. Holder (CADC docket number 11-5047).

Update on U.S. Citizens Association v. Sebelius

The focus of the past two weeks has been on the two marquee cases, Virginia v. Sebelius and Florida v. HHS.  I thus missed some minor developments in U.S. Citizens Ass'n v. Sebelius, the case currently before Judge David Dowd in the Northern District of Ohio.

First, on February 28, Judge Dowd issued this order dismissing counts 2, 3, and 4 with prejudice, clarifying that the court's judgment was final on those points. The goal, said the court, was to permit the plaintiffs now to appeal that judgment. These claims are that the ACA "violates plaintiffs’ freedom of expressive and intimate association guaranteed by the First and Fifth Amendments of the United States Constitution (Count 2), the due process clause of the Fifth Amendment of the United States Constitution (Count 3), and plaintiffs’ constitutionally protected right to privacy (Count 4)." Order at p.1.

Second, in response to Judge Dowd's order, the plaintiffs filed this motion Monday for clarification of Judge Dowd's order seeking as follows:

Plaintiffs respectfully request that this Court grant Plaintiffs’ motion for clarification or, in the alternative, for reconsideration of this Court's Order filed February 28, 2011. In particular, Plaintiffs ask the Court to issue its decision on the merits of Count 1 forthwith or, if not, to clarify that it will act on Plaintiffs' pending Count 1 on or before May 2, 2011, the deadline by which Plaintiffs must file their appeal of decided Counts 2, 3, and 4.

The Plaintiffs are specifically concerned about being forced to bring their appeals piecemeal. There has been no official response to this motion from the United States or Judge Dowd.

Correction: plaintiffs say U.S. proposal does not actually expedite

A correction to my prior post. In their response to the U.S. petition to expedite review, the plaintiff-appellees note that the proposed briefing schedule would not actually expedite review. Thus, they propose the following schedule:

4.18: U.S. opening brief due

5.09: appellees' response brief and cross-appeal due

5.23: U.S. reply brief and response to cross-appeal due

5.30: appellees' reply brief in cross-appeal

Week of 6.06: en banc hearing in Atlanta

I am guessing that DOJ will consider this proposal far too compressed, and thus will oppose it.

Plaintiffs respond to U.S. request to expedite, additionally petition for en banc hearing

The plaintiff-appellees in Florida v. HHS (26 states, two private individuals, and the NFIB) have filed their response the DOJ's petition to expedite appellate review in the Eleventh Circuit. The response generally agrees with the schedule proposed by the United States (detailed in a post below), though there may be some disagreement about how much additional time might be necessary for DOJ to respond the plaintiffs' cross-appeal (as they lost on every claim other than that the individual mandate exceeds Congress's enumerated powers).

You can find the response here.

In addition, the plaintiff-appellees have filed a petition for en banc review, specifically requesting that the case be heard by the full Eleventh Circuit in Atlanta the week of June 6. (This has now become commonplace in these cases. Although petitions for en banc review are generally made after a three-judge panel decision--and thus are petitions for en banc rehearing--this is now the third case in which plaintiffs challenging the ACA have sought en banc review in the first instance, the others being Baldwin v. Sebelius (CA9) and Mead v. Holder (CADC).)

You can access the petition for en banc review here.  

U.S. appeal docketed at the Eleventh Circuit

The United States's appeal in Florida v. HHS has been docketed at the United States Court of Appeals for the Eleventh Circuit. The docket number is 11-11021. The letter from the Clerk of the Eleventh Circuit, John Ley, noting the case's docketing and explaining some of the details of the process can be found here.

U.S. files notice of appeal and motion to expedite in Florida v. HHS

The United States has met the requirements laid out by Judge Vinson for the continuation of his stay order: the DOJ has filed its notice of appeal and its motion to expedite appellate review in the Eleventh Circuit. You can access the motion to expedite here.

Here is the briefing schedule laid out in the motion, with a brief caveat:

[The United States] asks that the Court expedite proceedings and establish the following briefing schedule, with oral argument to follow on an expedited basis as determined by the Court:

Defendants’ Opening Brief: due 4/18/2011

Plaintiffs’ Response Brief: due 5/18/2011

Defendants’ Reply Brief: due 6/1/2011 (as qualified below)

The proposed deadline for the reply brief assumes that plaintiffs will not renew on appeal, through cross-appeal or otherwise, claims or arguments not accepted by the district court. If that assumption proves incorrect, defendants may need additional time for the reply brief. We have consulted with plaintiffs’ counsel, who advised us today that plaintiffs are not in a position to support or oppose this motion.

If accepted by the Eleventh Circuit, this would presumably mean oral argument in late June or early July.

Virginia's serious standing problem

Two of the amicus briefs filed yesterday in support of the United States in Virginia v. Sebelius--this one filed by Professor Kevin Walsh, and this one filed by the Professors of Federal Jurisdiction--are devoted exclusively to whether the Commonwealth has standing to challenge the individual mandate. Both conclude that it does not. Walsh argues (principally) that the federal courts lack statutory subject matter jurisdiction, an argument he makes at greater length in this article (forthcoming in the Stanford Law Review). The fed jur professors argue that, wholly apart from the statutory question, Virginia lacks constitutional standing under Article III.

We have discussed this point many times on this blog, going all the way back to Judge Hudson's initial ruling in August. But this is the first time that the arguments have received a full airing in papers filed with the courts. And I think they show why Virginia has a real problem--why this controversy, properly understood, is non-justiciable. At bottom, a state lacks any cognizable interest in whether a federal law regulating the conduct of private citizens exceeds Congress's enumerated powers (absent some other direct impact on the state itself). Virginia's Health Care Freedom Act simply does nothing to alter this basic fact. A contrary rule would effectively permit states, by passing similar nullification laws, to challenge in federal court any federal law with which they disagree.

Now one might wonder, if these standing arguments are so compelling, why hasn't DOJ emphasized them more in its filings? There is a rather simple explanation, I think. Even if Virginia (and the states in the Florida litigation) lack standing to challenge the minimum essential coverage provision, there are plenty of private individuals (such as those in the Liberty University case already before the Fourth Circuit, or the private plaintiffs in Florida v. HHS) who do have standing. Indeed, the DOJ, after contesting it in early stages of the litigation, has largely conceded the point. So DOJ will have to defend the constitutionality of ACA 1501(b) regardless, and who has standing only affects who will be the party against whom DOJ is making the argument. Given this inevitability, it makes little sense for DOJ to spend much of its scarce briefing space on whether Virginia has standing.

The ultimate significance of this issue to the fate of the ACA is rather small. In the end, there seem to be plenty of plaintiffs with standing to challenge the constitutionality of the minimum coverage provision in the existing cases. But in my view, the Commonwealth of Virginia is not one of them. Thus, its charismatic attorney general should not be the one who takes this matter to the Supreme Court.

Plaintiffs file amended complaint in Bryant v. Holder

The suit alternatively known as Bryant v. Holder or Walters v. Holder is back in motion, as the plaintiffs have filed an amended complaint in response to the district court's dismissal of their original complaint without prejudice. District Court Judge Keith Starrett, in his order of February 3, concluded that the plaintiffs had failed to allege any harm that would entitle them to standing to challenge the ACA, particularly the minimum essential coverage requirement. But he dismissed without prejudice, affording them the opportunity to amend their complaint so as to include the necessary allegations. (This should be rather easy, as the United States has now effectively conceded that individuals who assert current injury from the need to save to afford health insurance in 2014 have standing to challenge the minimum coverage requirement.)

On Friday, the plaintiffs filed that amended complaint, which you can find here.

That appears to be it

Perhaps another amicus brief or two will appear on the Fourth Circuit's docket sheet for Case no. 11-1057 tomorrow morning. But for now, it looks as if we are done--with a mere 19 amicus filings, 18 supporting the United States and one in favor of neither party. (Amicus in support of Virginia will be due a week after Virginia's brief on the merits.) I will try to wade through the 300 to 400 pages of reading in the next couple of days and report back on anything particularly interesting.

By the way, the next important date in this litigation is potentially next Monday, when the United States is due to file its brief in opposition to Virginia's petition to the Supreme Court for a writ of certiorari before judgment. The Supreme Court docket number for the case is 10-1014.

Four more amicus briefs

Four more amicus curiae briefs have been filed in Virginia v. Sebelius, three in support of the United States and one in support of neither party.

In support of the United States:

* The American Cancer Society et al., available here.

* Washington Governor Christine Gregoire, available here.

* The Service Employees International Union (SEIU), available here.

In support of neither party:

* The America's Health Insurance Plans, available here.

That the insurance companies have jumped into the fray is a significant development. I have yet to read the brief, but presumably they are most interested in the severability question. That is, they can live with the whole ACA, or with nothing. But they cannot live with the "guaranteed issue" and "community rating" requirements without the minimum coverage requirement.

Thirteen more

Here are thirteen more amicus curiae briefs filed today in support of the United States in Virginia v. Sebelius:

* Brief of AARP, available here.

* Brief of the American Hospital Association, available here.

* Brief of the American Nurses Association et al., available here.

* Brief of law professors Barry Friedman, Matthew Adler, et al., available here.

* Brief of Constitutional Accountability Center, available here.

* Brief of the states of California, Connecticut, Delaware, Hawai'i, Iowa, Maryland, New York, Oregon, and Vermont, available here.

* Brief of constitutional law professors Jack Balkin, Gillian Metzger, and Trevor Morrison, available here.

* Brief of Economic Scholars, available here.

* Brief of Professors of Federal Jurisdiction, available here.

* Brief of the Commonwealth of Massachusetts, available here.

* Brief of the National Women's Law Center et al., available here.

* Brief of Virginia Organizing, available here.

* Brief of Young Invincibles, available here.

I think there are still more. If so, I will have them up before the night is over.

Amicus briefs in Virginia v. Sebelius

Today is the deadline for the filing of amicus curiae briefs in support of the United States in Virginia v. Sebelius. And a whole bunch of briefs have been filed, including a number from parties that thus far had not filed any briefs in any of the other cases or at any other stage of the litigation.

I am currently having some trouble with PACER. So although I have seen that this large array of briefs have been filed at the Fourth Circuit, I have only been able to download two. (Many more to follow, once I am able to access the documents that have been docketed.) Here they are:

* One filed by Professor Kevin Walsh (University of Richmond School of Law), arguing that the federal courts lack subject matter jurisdiction under the Declaratory Judgment Act, available here.

* One filed by the American Association of People with Disabilities et al., quite similar to the brief those organizations have filed in several other cases (and at the summary judgment stage in this case), available here.

More to follow as soon as possible.

Reply brief filed in Liberty University v. Geithner

The appellants in Liberty University v. Geithner filed their reply brief this afternoon at the Fourth Circuit. This completes briefing in the case, which will be argued the week of May 10 (and heard by the same panel that hears the other Fourth Circuit ACA case, Virginia v. Sebelius.

You can access the appellants' reply brief here.