The "other" cases

There are now five constitutional challenges to the ACA scheduled for oral argument in the United States Courts of Appeals: Virginia v. Sebelius and Liberty Unitversity v. Geithner (Fourth Circuit, May 10); Thomas More Law Center v. Obama (Sixth Circuit, June 1); Florida v. HHS (Eleventh Circuit, June 8); and Seven-Sky v. Holder (D.C. Circuit, sometime in September). All five present the principal question in this litigation: whether the minimum essential coverage provision is within Congress's enumerated powers.

Meanwhile, all activity in the sundry other constitutional challenges to the ACA has virtually ground to a halt. For instance, briefing in Baldwin v. Sebelius has been complete for more than two months, and a petition for initial en banc hearing has been pending for just as long. But the Ninth Circuit has done nothing. Likewise, the District Court (N.D. Ohio) in U.S. Citizens Association v. Sebelius has essentially held that it plans to take no further action until the matter is resolved by higher courts.

All of this makes a fair amount of sense. It seems unlikely that any of these other cases will be the one that goes up to the Supreme Court. So there seems little use in laboring away to no particular end, when the matter will ultimately be resolved by a different court in a different case.

Of course, many of these challenges raise other constitutional issues--issues that the Supreme Court is unlikely to address (unless it holds that the minimum coverage provision is unconstitutional and unseverable from the rest of the ACA). Thus, the lower courts will likely have to confront these other questions at some point in the future.

But for now, most of the other action seems to be on hold, while these five cases make their way to the Supreme Court--most likely to be decided in June 2012.

U.S. files reply brief in Virginia v. Sebelius

In all the flurry of amicus filings at the Eleventh Circuit, I overlooked this: the United States has filed its reply brief in Virginia v. Sebelius at the Fourth Circuit. You can access the brief here. 

That means briefing is now complete in both of the Fourth Circuit cases, and the next important date is May 10--four weeks from today--when the case will be orally argued before a three-judge panel. The composition of that panel, per normal Fourth Circuit procedure, will be unknown until the morning of the argument.

That is, unless the Supreme Court grants Virginia's petition for a writ of certiorari before judgment. In that case, the Fourth Circuit would no longer have jurisdiction over Virginia v. Sebelius, and presumably would hold Liberty University v. Geithner until the Supreme Court had rules.

Again, the Supreme Court is scheduled to discuss Virginia v. Sebelius at this Friday's conference. (If the case does not make the justices' "discuss list," it will not actually be discussed.) The most likely moment at which we will know what the justices have decided with respect to Virginia's petition is at 10:00 a.m. Monday morning, when the Court issues its order list. But for a variety of reasons, we may not know at that moment. The decision may not come until later, in a subsequent order.

Last one

Or at least I think it is the last one.

The brief of the Professors of Federal Jurisdiction in support of the United States in Florida v. HHS, available here.

Three more amicus briefs in support of the United States

The electronic versions of three more amicus briefs in support of the United States in Florida v. HHS have been docketed this morning my the Eleventh Circuit. They are briefs filed by:

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

* The American Academy of Pediatrics et al., available here.

* Law professors Barry Friedman,  Matthew Adler, et al., available here.

There is one other amicus brief--that from the Professors of Federal Jurisdiction--which I am having some trouble downloading from PACER. We should have it up shortly.

Another summary

AARP:

The AARP’s brief makes four principle arguments in support of the United States. First, that “Congress had the constitutional authority to enact the ACA where there was a rational basis for concluding that the minimum coverage provisions will have a substantial effect on interstate commerce.”

Second, the AARP argues that “the ACA sought to eliminate the unavailability and unaffordability of health insurance for millions of Americans, especially 50 to 64 year olds who must purchase health insurance on the individual market.” In support of this claim, the AARP writes that “people 50 to 64 are systematically denied coverage or priced out of the individual market because their high incidences of pre-existing chronic conditions,” and that “age rating substantially raises standard insurance rates based solely on age making insurance unaffordable to people 50 to 64.”

Third, the AARP argues that “uninsured and underinsured people suffer worse health outcomes requiring more intensive and costlier care when they enter Medicare at 65 than previously insured people.”

Finally, the AARP argues that “the ACA’s creation of a robust insurance pool spreads insurance risks, which in turn allows for affordable health care insurance options for Americans of all ages and with chronic or pre-existing health conditions.”

Summaries of yesterday’s amicus briefs supporting the United States or neither party

American Association of People with Disabilities, et al.:

The American Association of People with Disabilities (AAPD) argues the following in its brief in support of the United States. First, that “the experience of the states demonstrates that ensuring coverage for persons with pre-existing medical conditions has worked only with a complementary requirement that persons who can afford it carry health insurance.” In support, it argues that “state bans on excluding from coverage people with pre-existing conditions that were not accompanied by a minimum coverage provision have been unsuccessful,” and that “Massachusetts successfully banned excluding from insurance plans patients with pre-existing conditions by requiring minimum coverage.”

Second, the AAPD argues that “individuals who choose to forego insurance shift billions of dollars of costs to other participants in the health insurance and services market.”

Finally, the AAPD argues that “the minimum coverage provision, together with the prohibition on exclusions for pre-existing conditions, can be expected to reduce health care costs, prevent medical bankruptcies, encourage fluidity in the job market, and eliminate the economic costs from unnecessary deaths.” In support of this claim, the AAPD writes that (1) “the pre-existing conditions will reduce health care costs for millions of American, (2) that “the pre-existing conditions provision will reduce medical expenses,” (3) that “the pre-existing conditions provision will reduce ‘job lock,’” and (4) that “the pre-existing conditions provision will reduce preventable deaths.”

Chamber of Commerce's amicus brief

There are still some other briefs that the Eleventh Circuit has yet to upload in electronic form to PACER, even though they have been filed in hard copy. But here is probably the most significant one: that filed by the Chamber of Commerce's National Litigation Center in support of neither party.

The Chamber makes the same argument it presented last week in the brief it filed at the Fourth Circuit in Virginia v. Sebelius. Namely, it contends that (1) if the minimum coverage provision is unconstitutional, the guaranteed issue and community rating provisions likewise must be declared invalid as unseverable, and (2) several other provisions might be unseverable as well--namely, the risk-adjustment provision, the bar on annual limits for benefits, and the Medical Loss Ratio provision.

You can access the Chamber's brief here.  

One more

You can find the amicus curiae brief of the AARP in Florida v. HHS here.

(UPDATE: This is a revised version of the brief to correct some formatting problems that arose in converting the document to a PDF.)

There are still more that appear to have been filed in hard copy but are not yet available in electronic form through PACER. We will post them as soon as possible.

Amicus briefs supporting the U.S. (or supporting neither party)

Here are the eleven amicus curiae briefs available thus far:

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

* American Nurses Association et al., available here.

* Constitutional Law Professors, available here.

* Economic Scholars, available here.

* The Commonwealth of Massachusetts, available here.

* The Missouri Attorney General (Chris Koster), available here.

* The National Indian Health Board et al., available here.

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

* Senator Reid and Representative Pelosi et al., available here.

* State Legislators, available here.

* Professor Kevin Walsh, available here.

The big one not yet posted is that from the Chamber of Commerce. More later.

Amicus briefs due at the Eleventh Circuit today

Today is the deadline for amicus curiae briefs in support of the United States in Florida v. HHS. The big news, thus far, is that the Attorney General of the State of Missouri, a Democrat (though only recently so), has broken with his party and filed an amicus brief arguing that the ACA is unconstitutional.

Not all of the briefs have been yet docketed in electronic form on PACER. But we will post all those that are available this afternoon or evening.

Kagan's involvement while Solicitor General

The issue of the degree to which now-Justice Elena Kagan participated in the government's anticipated and actual defense of the ACA while serving as Solicitor General has surfaced again. The occasion is the release of a batch of documents, in response to a Freedom of Information Act request, revealing a number of communications about the issue among lawyers in the Department of Justice, and especially the Office of the Solicitor General. The documents seem to show as follows:

* Kagan knew by early March 2010 that she was under consideration for the expected vacancy to be created by the expected retirement of Justice Stevens.

* Kagan, and others in the SG's office--including current Acting SG Neal Katyal--began taking steps to exclude Kagan from substantive involvement in the matter, presumably in anticipation of the potential recusal issue.

* Indeed, there is circumstantial evidence that, as early as January 2010--more than two months before the ACA was enacted--Kagan had this in mind and asked Katyal to to attends meetings on behalf of the office about potential defenses of the statute.

* As to nub of the matter, Kagan--as we would expect--appears to have had no substantive involvement, and Katyal (who now appears likely to argue some or all of these cases in the Courts of Appeals) became the office's "lead" on matters related to the ACA litigation. In other words, this confirms what she stated at her confirmation hearings.

All of this seems to confirm what everyone surmised at the time of Kagan's confirmation hearings. Namely, we all suspected that (1) the SG's office must have been involved in some way in the DOJ's response to this litigation, and shortly after the lawsuits were filed on March 23, 2010, if not before; and (2) given Kagan's statements about her lack of substantive involvement in any of the litigation, there must have been some deliberate effort to cut her out of the cases. These documents show both of these suppositions to be true.

In other words--unless I have missed something--the details revealed by the documents are somewhat interesting, at least for geeks interested in the inner workings of the SG's office. But there does not appear to be anything especially newsworthy here, at least as it relates to the propriety of Kagan participating in cases challenging the ACA's constitutionality (or the truthfulness of her testimony at her confirmation hearings).

(You might remember that Kagan participated in the Court's consideration of the petition for a writ of certiorari before judgment filed by the plaintiffs in Baldwin v. Sebelius, a case now pending before the Ninth Circuit. The Court, of course, denied that petition.)

You can access the newly released documents here.

Another summary

Chamber of Commerce of the United States:

The Chamber makes the following arguments in its amicus brief in support of neither party. First, the Chamber argues that “if the minimum coverage mandate is held to exceed Congress’s constitutional powers, health insurance reform provisions in the PPACA should also be invalidated as non-severable from the mandate.” According to the Chamber, the district court’s severability analysis “is fundamentally flawed,” and “a proper approach to severability compels the conclusion that the PPACA’s guaranteed-issue and community-rating provisions are non-severable from the individual mandate.” Furthermore, “health insurance reforms beyond the guaranteed-issue and community-rating provisions are similarly intertwined with the individual mandate for severability purposes.” For instance, the Chamber contends that the Act’s risk-adjustment mechanism “would not function properly without the individual mandate and the associated community-rating and guaranteed-issue reforms.” Thus, “if the mandate, guaranteed-issue, and community-rating provisions were invalidated and the risk adjustment mechanism remained, gross inefficiencies in the health insurance markets would exist, allowing insurers to pass off to others the consequences of flawed underwriting and poor management of health care costs.” Similarly, the Chamber contends that the Act’s bar on annual limits for benefits and its medical loss ratio provision are non-severable.

Second, the Chamber argues that “if this court affirms the invalidation of the individual mandate but does not invalidate the entire Act, it should remand to the district court to conduct a proper severability analysis in the first instance.”

More summaries

Virginia Delegate Bob Marshall, Gun Owners of America, Inc., Gun Owners Foundation, American Life League, Inc., Institute on the Constitution, the Lincoln Institute for Research and Education, Public Advocate of the United States, Conservative Legal Defense and Education Fund, The Liberty Committee, Downsize DC Foundation, DownsizeDC.org, and Policy Analysis Center:

Here, the amici’s brief argues three major points. First, that Virginia has standing to bring this action because (1) “the Virginia Health Care Freedom Act is not an act of nullification,” (2) the doctrine of parens patriae does not apply,” and (3) “the federal judicial power is not subject to prudential limitations.”

Second, that the individual mandate “cannot be justified as a constitutional exercise” of Congress’s authority under the Commerce Clause because: (1) the individual mandate is “morally-based, not commerce-based”; (2) the PPACA “is not a constitutional exercise of Congress’s power to regulate interstate commerce”; and (3) “as a ‘tax,’ the individual mandate confirms that [the] PPACA is an unconstitutional exercise of Congress’s Commerce Power.”

Finally, that the PPACA “constitutes [a] federal take-over of health and medicine in violation of the power of states and of the people secured by the Tenth Amendment,” because (1) it “intrudes on states regulation of the practice of medicine,” and (2) “suppresses individual healthcare choice.”

Former Attorneys General:

The former Attorneys General’s brief argues the following. First, it argues that “the individual mandate is an unprecedented subsidy for insurance providers, compelling commerce by private individuals not engaged in any form of commercial activity.”

Second, it argues that “the mandate does not regulate interstate commerce, or ‘economic activity’ that has a ‘substantial effect’ on interstate commerce” because (1) “the mandate does not regulate commerce,” and (2) the mandate cannot be justified as regulating economic activities that in the aggregate ‘substantially affect’ interstate commerce.”

Third, it argues that “the mandate is neither ‘necessary’ nor ‘proper’ for carrying into execution Congress’s power to regulate interstate commerce” because: (1) “the mandate is not ‘necessary’ to ‘carry[]into execution’ Congress’s regulation of interstate commerce, but instead attempts to counteract the effects of executed regulations”; and (1) “forcing private parties to enter into disadvantageous contracts to subsidize a private industry is not a ‘proper’ means of executing a regulation of interstate commerce.”

Finally, it argues that “the government’s attempts to defend a hypothetical law cannot save the mandate.”

The Center for Constitutional Jurisprudence:

The Center for Constitutional Jurisprudence argues the following to support its position that the PPACA is unconstitutional. First, the Center argues that “the doctrine that the federal government is one of only limited, enumerated powers is a bedrock principle of constitutional law.” Second, it argues that “the Commerce Clause was not meant to be a source of expansive federal intrusion into the daily lives of citizens.” Lastly, the Center argues that “even under the expanded view of the Commerce Clause taken in this court’s modern-era precedents, the PPACA exceeds the outer limits of the power afforded to Congress.”

The American Civil Rights Union:

The American Civil Rights Union’s brief contains five major arguments. First, that “the individual mandate regulates individuals not participating in interstate commerce for health insurance.” Second, that “the individual compels individuals to purchase health insurance sold only within completely intrastate markets by law, and does not involve regulations of interstate commerce for this reason as well.” Third, that “the individual mandate cannot be justified under the Necessary and Proper Clause.” Fourth, that “Congress can achieve all the social goals means to be addressed through the individual mandate through alternative means that are fully constitutional.” Finally, that because “the individual mandate cannot be severed,” the “whole PPACA must be found unconstitutional.”

Physician Hospitals of America:

The Physician Hospitals of America’s brief argues the following. First, that “in the absence of a severability provision, there is no presumption of severability.” Second, that “the only viable approach is to strike the whole Act,” because (1) “striking more than just § 1501 but not the whole statute is neither legally permissible nor even feasible,” (2) “Section 1501 is not severable from the entire remaining statute,” and (3) “the only constitutionally proper and workable approach is for the court to strike down PPACA in its entirety.”

More summaries

CATO Institute:

The CATO Institute’s brief first argues that individual mandate is unconstitutional under the “substantial effects” doctrine “that defines the scope of the Necessary and Proper Clause in the context of the Commerce Power.” In support of this claim, CATO writes that “the ‘substantial effects’ doctrine interprets the Necessary and Proper Clause in the Commerce Clause context to allow Congress to exercise its regulatory authority while cabining that authority, and “regulating inactivity transcends the Necessary and Proper Clause’s limits on the Commerce Clause.” Second, CATO argues that the “individual mandate cannot be justified as an essential part of a broader regulatory scheme” because Congress cannot regulate inactivity.” Finally, CATO argues that “the individual mandate constitutes ‘commandeering of the people’ that is not ‘proper’ under the Necessary and Proper Clause.”

Mountain States Legal Foundation:

The Mountain States Legal Foundation’s brief argues the following in support of the plaintiffs. First, that the “the principle of a limited federal government of enumerated powers is deeply in the history of the United States,” and are “enshrined in the Constitution.” Second, that the court should affirm the district court’s ruling because doing otherwise would cause the federal government to cease being one of enumerated powers. In furtherance of this claim, the Mountain States Legal Foundation argues that “if the individual mandate is a valid exercise of the Commerce Power, the Commerce Clause will render the other enumerated powers superfluous, and that “if the individual mandate is a valid exercise of the Commerce Power, the principle of a limited federal government of enumerated powers will be eviscerated.”

Justice and Freedom Fund:

The Justice and Freedom Fund makes the following arguments against the individual mandate’s constitutionality and severability. First, the Fund argues that the court “should strike down the entire act in order to protect the Doctrine of Separation of Powers as mandated by the Constitution.” In support of this, the Fund argues that “this court cannot conform the Act to the Constitution without performing radical surgery—a quintessentially legislative function.”

Second, the Justice and Freedom Fund argues that the court should “strike down the entire Act because severance would thwart the objectives of Congress in enacting it.” According to the Fund, this is so because “it is virtually certain that Congress would not have passed the Act without the individual mandate,” and because “even if the remaining provisions could function independently—a truncated act would not serve Congressional purposes.”

Finally, the Justice and Freedom Fund argues that “neither the Necessary and Proper Clause nor the Commerce Clause can salvage the perverse ‘necessity’ Congress itself created.” The Fund argues that “the Necessary and Proper Clause is not a separate grant of authority that Congress can use to penalize Americans who decline to purchase health insurance. The Fund proceeds to explain how the individual mandate fits within the five categories that the Supreme Court relied upon in determining the outcome of United States v. Comstock. Like the Washington Legal Foundation, the Fund concludes that when placed within the Comstock framework, the individual mandate falls short of constitutionality under the Necessary and Proper Clause.

Kurt Rohlfs:

Mr. Rohlfs’s brief focuses on two issues: whether Virginia has standing and whether “the ACA violates the Constitution’s apportionment and geographic uniformity provisions.” In regard to the latter, Mr. Rohlfs argues that (1) the ACA is an entitlement, (2) “compulsory premiums paid to satisfy the individual mandate are taxes,” and (3) “even if not ‘taxation,’ the individual mandate is not authorized by the Commerce Clause.”

Landmark Legal Foundation:

The Landmark Legal Foundation makes the following arguments against the ACA’s constitutionality. First, it argues that the individual mandate is “an unprecedented and unconstitutional police power impermissible under either the Commerce Clause or the Necessary and Proper Clause.” According the Foundation’s brief, “the Supreme Court’s modern Commerce Clause and Necessary and Proper Clause jurisprudence does not support the proposition that Congress may compel private individuals to engage in economic activity.” Second, the Landmark Legal Foundation argues that “Section 500A of the PPACA establishes an unconstitutional tax.”

Family Research Council:

The Family Research Council limited its argument to the severability issue. The Council argues that the court can “hold Section 1501 nonseverable from the remainder of PPACA without adverse ramifications for other statutes.” According to the Council, Virginia’s severability argument “under Alaska Airlines comports with the Supreme Court’s most recent restatement of [the] severability doctrine in Free Enterprise Fund.” Furthermore, the Council argues that Virginia’s severability argument is also confirmed by the three principles of [the] severability doctrine announced by the Supreme Court in Ayotte.” Finally, the Council concludes that Virginia’s “severability argument from Alaska Airlines is consistent with 111 years of prior Supreme Court precedent.”

Summaries of yesterday's amicus briefs

Here are the first of our summaries of yesterday’s amicus briefs from the Fourth Circuit. We will continue to post them as they are completed.

Pacific Legal Foundation:

The Pacific Legal Foundation limits its argument to the standing issue, arguing that “states have a constitutionally recognized sovereign interest in articulating and defending the rights of their citizens.” The Pacific Legal Foundation states the following in support of this claim. First, that “federalism exists to protect the rights of citizens and the Tenth Amendment implicitly incorporates states’ sovereign interest in defending citizens’ rights.” Second, that “a state’s sovereign interest in protecting individual rights is distinct from the individual’s interest in those rights and is not a political question.” Third, that “states are uniquely positioned to litigate Tenth Amendment violations, and courts should interpret standing flexibly to allow them to do so.” Finally, the Pacific Legal Foundation argues that “allowing states to sue on these grounds is a viable alternative to ‘nullification.’”

Washington Legal Foundation and Constitutional Law Scholars:

The Washington Legal Foundation and Constitutional Law Scholars limit their arguments to whether Congress’s enactment of the individual mandate was supported by the Commerce Clause or the Necessary and Proper Clause.

First, in regard to the Commerce Clause, they write that “nothing in the Court’s Commerce Clause precedents gives Congress power to force private citizens to engage in economic transactions they would prefer to avoid.” They argue that “the individual mandate regulates neither consumption nor any other activity, but applies instead to virtually all uninsured Americans whether or not they consume health care services.” Thus, “if, as the Secretary suggests, the Commerce power extends to all economic decisions as well as all economic activities, Congress would enjoy unlimited authority to mandate any behavior of any kind.”

Second, regarding the Necessary and Proper Clause, the Washington Legal Foundation and Constitutional Law Scholars argue that “the individual mandate runs afoul of at least three of the five criteria for evaluating Necessary and Proper Clause cases recently utilized by the Supreme Court in United States v. Comstock.” They also argue that the individual mandate is not proper because “[h]istorical evidence suggests that ‘proper legislation at the very least must not upset the constitutional balance of power between the federal and state governments by giving Congress virtually unlimited authority.”

American Center for Law & Justice:

The American Center for Law & Justice limits its argument to whether the Commerce Clause authorizes the individual mandate, and whether the individual mandate is severable from the rest of the Act.

First, they argue that “the Commerce Clause has never been understood to encompass all ‘conduct’ that affects interstate commerce.” They argue that the Commerce Clause “does not authorize Congress to regulate the inactivity of American citizens by requiring them to buy a good or service (such as health insurance) as a condition of their lawful residence in this country.” Thus, “Because the decision not to engage in interstate commerce is not interstate commerce,” the individual mandate exceeds Congress’s Commerce Clause authority.

Second, the American Center for Law & Justice argues that the “individual mandate’s unconstitutionality requires the entire PPACA to fall.” This is based on two factors: that the PPACA does not contain a severability clause; and that, by the government’s admission, the PPACA’s remaining provisions cannot function without the individual mandate.”

American Physicians and Surgeons, Inc.:

American Physicians and Surgeons, Inc. argue that “Congress lacks power to enact Section 1501 for two reasons.” First, they argue that “there is no power to regulate commerce because there is not commerce.” Second, they argue that “Section 1501 fails to comply with the Constitution’s procedural requirements and substantive restrictions.” Regarding procedural requirements, American Physicians and Surgeons, Inc. argues that “Congress violated the Presentment Clause by simultaneously enacting and amending Section 1501.” On the substantive side, they argue that “Section 1501 invades the ‘private enclave’ enjoyed by patients since the time of Hippocrates.”

They also address the severability issue. American Physicians and Surgeons, Inc. argue that rather than being “a doctrine of judicial restraint,” the severance doctrine is a form of “judicial activism that allows, and possibly even encourages, constitutional sloppiness by Congress and the President.” Thus, they conclude that the individual mandate cannot be severed from the rest of the Act.

A message for those filing amicus briefs in support of the United States in Florida v. HHS

I have just received a very helpful message from one of the attorneys working on an amicus curiae brief in support of the United States in Florida v. HHS. He has spoken with the clerk's office of the Eleventh Circuit in Atlanta, and clarified any ambiguity: amicus briefs in support of the United States are due MONDAY, APRIL 11 (and not this Friday). (To be specific, this is the day that the hard copies are due, according to this attorney.)

Apparently, the Department of Justice "tendered" its brief on Friday, but did not officially "file" its brief until yesterday, April 4. Thus, the seven-day clock for the filing of an amicus brief began to run yesterday, giving parties until Monday under Federal Rule of Appellate Procedure 29(e).

Sorry for the confusion.

Three more amicus briefs

Three more amicus curiae briefs in support of Virginia in Virginia v. Sebelius have been docketed this evening at the Fourth Circuit. They have been filed by the following parties:

* The Center for Constitutional Jurisprudence, available here.

* The American Civil Rights Union, available here.

* The Physician Hospitals of America, available here.

I believe that is it for the night.

The fun starts again on Friday, when the amicus briefs in support of the United States are due at the Eleventh Circuit in Florida v. HHS.

Enter the Chamber of Commerce

Those who follow the Supreme Court know that one of the most influential players in Supreme Court litigation today--perhaps second in significance only to the Office of the Solicitor General--is the National Chamber Litigation Center, the appellate litigation arm of the Chamber of Commerce of the United States. Much has been written about the effectiveness of the NCLC, its extremely competent director (Robin Conrad), and its influence on the Roberts Court. (This figure does not prove anything in itself, but it is provocative nonetheless: the Roberts Court has agreed with the NCLC in roughly 70 percent of the cases in which the NCLC has participated, as a party or as an amicus.)

So it is big news that, for the first time in any of this litigation, the NCLC has filed a brief today in Virginia v. Sebelius. The brief does not take a position on whether the minimum essential coverage provision is constitutional. But it argues, in strong terms, that the individual mandate cannot be severed from the other aspects of insurance reform in the ACA--specifically, the guaranteed issue and community rating provisions of Section 1201.

Were the Chamber to actually take sides on the question on the merits, that would be even bigger news. But this is an important development nonetheless.

You can access the NCLC's brief here.

Former Attorneys General file amicus brief

Three former Attorneys General--Edwin Meese III, Dick Thornburgh, and William Barr--who served in the Reagan and George H.W. Bush administrations have filed an amicus curiae brief in support of Virginia in Virginia v. Sebelius. Between the three of them, they held the office of Attorney General from February 1985 to January 1993. The brief is authored by Michael A. Carvin and C. Kevin Marshall of Jones Day.

You can access their brief here.

And three more

By my count, this now brings the total to eleven amicus briefs in support of Virginia filed electronically. The latest to be filed are as follows:

* The Landmark Legal Foundation, available here.

* The Family Research Council, available here.

* Virginia Delegate Bob Marshall, Gun Owners of America, Inc., Gun Owners Foundation, American Life League, Inc., Institute on the Constitution, the Lincoln Institute for Research and Education, Public Advocate of the United States, Conservative Legal Defense and Education Fund, The Liberty Committee, Downsize DC Foundation, DownsizeDC.org, and Policy Analysis Center, available here.

I had thought, perhaps mistakenly, that the Second Amendment was one of the only provisions of the Constitution not being litigated in these various challenges.

(To be fair, this last brief does not make any Second Amendment arguments. Rather, there is simply an ideological affinity between those favoring robust gun rights and those skeptical of the breadth of congressional authority sufficient to support the ACA.)