Six things to look for tomorrow

It is now less than 22 hours until arguments begin in Richmond in Liberty University v. Geithner and Virginia v. Sebelius. Here are a few things to keep our eyes (or ears) on, roughly in their order of importance:

1. What is the panel? Of course, judges are different than legislators, and passing judgment on the constitutionality of the ACA is quite different from voting on it as a member of Congress. But in cases like this--where the law does not clearly dictate one outcome or the other, and the issue is deeply political and ideological--the personal political commitments of the judge are apt to matter. Thus, which Fourth Circuit judges are on the panel may be the most significant piece of information revealed tomorrow. The Fourth Circuit is now pretty strongly Democratic: Eight of the thirteen active judges are effectively Democratic appointees. (Judge Roger Gregory is technically a G.W. Bush appointee, but he was first appointed in a recess appointment by Clinton, and was nominated by Bush as part of compromise.) But a random draw does not assure a representative panel. And Judge Wilkinson, given his stature (and his commitment to federalism), could have a disproportionate influence on deliberations.

2. Which side is pushed harder? It is perilous to make too many inferences from what happens at oral argument. But the empirical work that has been done on the subject has pretty consistently demonstrated that judges ask more questions of the side they ultimately rule against. So, as a general matter, it will be worth watching which side gets the rougher treatment.

3. How much time is spent on severability? If the panel spends a good deal of time asking about the severability of the minimum coverage provision from the rest of the ACA, that obviously would be a bad sign for the federal government. For the severability is only relevant if the minimum coverage provision is unconstitutional.

4. How much time is spent on standing? Both the United States and two important amicus briefs have raised serious questions about whether Virginia has standing to challenge the minimum coverage provision. And in my humble opinion, the district court's standing analysis was simply wrong--or at least inconsistent with binding Supreme Court precedent. Thus, it will be interesting to see whether the court is interested in this issue. If Virginia's case is dismissed, then the only case left in the Fourth Circuit is the Liberty University case. There may not be any justiciability issues with that case, but it may not be attractive as Florida v. HHS for the Court to grant.

5. Which government argument does the Court focus on? The United States is making two distinct (or at least arguably distinct arguments) as to why the minimum essential coverage provision is within Congress's authority to regulate interstate commerce: (1) that the regulated activity is obtaining health care services without insurance, and a decision about how to finance that care, both of which are economic or commercial activities, and thus within the commerce power under a straightforward application of Lopez and Morrison; and (2) even if the activity regulated by ACA 1501(b) is not itself economic or commercial in nature, it is an integral component of the ACA's broader regulation of the health insurance and health care services markets, and thus is "necessary and proper" to a comprehensive scheme that plainly regulates interstate commerce. These arguments have important doctrinal differences. It will be interesting to see to which the judges seem more receptive (if they are receptive at all).

6. How much do the judges ask about a "limiting principle"? At the most basic level, you could say this case comes down to whether the United States can convince the judges that upholding the ACA does not effectively mean that Congress's legislative authority is limitless--that the Constitution's system of enumerated federal powers is rendered a nullity. To what degree do the judges press General Katyal on explaining the government's "limiting principle," the principle that assures that upholding the ACA does not mean the federal government effectively has a general police power? What is General Katyal's answer? And do the judges seem convinced?

These are just the six that came to mind. There are other important issues, to be sure. But the answers to these questions will tell us much about which way the decision is likely to come down.

An important shift in the Medicaid argument

I have just made my way through the states' brief in Florida v. HHS for the second time, and something stood out to me in the states' challenge to the ACA's Medicaid amendments. Specifically, the states (1) do not appear to be resting anymore on a claim of reliance on the program remaining largely unchanged, but instead (2) rely principally on the claim that losing all of their Medicaid funding for failing to adhere to the ACA's conditions is disproportionate, and thus coercive.

This is an important shift in emphasis, and it is understandable strategically. It avoids some of the obvious problems with the general argument that simply too much money is at stake for the states to say no. But it also raises a number of new problems, the most obvious of which is this: I do not think it has been established that the federal government would, in fact, withdraw all of a state's Medicaid funds if it failed to completely adhere to the ACA's new requirements. The Secretary of HHS would have the statutory authority, but such a theoretical possibility, in itself, may be a ways from showing coercive pressure--especially if the Secretary has the discretion to take intermediate measures, such as only withholding the ACA-related funds.

In any event, this seems like an important shift in the terrain of the argument.

Summary of NFIB, Brown, and Ahlburg’s brief

The plaintiff-appellee’s argue the following. First, they write that the “Constitution establishes a federal government with limited and enumerated powers to protect individual liberty,” and contend that, “By conscripting citizens to subsidize voluntary participants in the insurance industry, it exemplifies the threat to individual liberty when Congress exceeds its enumerated powers and attempts to wield a plenary police power.”

Second, they argue that “forcing individuals to purchase health insurance is not a regulation of interstate commerce,” because: (1) the individual mandate “does not regulate commerce itself, in either its interstate or intrastate channels or instrumentalities”; and (2) it “does not regulate a class of economic activities that substantially affects interstate commerce.” They write that any “argument that the uninsured ‘affect’ the insurance market through their non-participation is foreclosed by precedent and would eliminate all limits on Congressional power.”

Third, they argue that “forcing individuals to purchase health insurance is neither necessary nor proper for carrying into execution a regulation of interstate commerce,” because: (1) the individual mandate “is not necessary to serve the legitimate end of carrying into execution the ACA’s commercial regulations,” and (2) it “is not a proper means of carrying into execution the ACA’s commercial regulations.” In regard to necessity, they argue that the mandate “is not ‘necessary’ because, rather than serving the legitimate end of eliminating barriers to the execution of the ACA’s regulation—i.e., ensuring complete compliance with the regulation—the mandate at best furthers the illegitimate end of counteracting the negative effects on insurers after the regulation is fully executed.” In regard to whether the mandate is proper, they argue that “given its unprecedented and oppressive nature—i.e., forcing economically disadvantageous contracts on unwilling individuals to subsidize third parties in traditional areas of state regulation” it is not.

Fourth, they contend that “forcing individuals to purchase health insurance is not a permissible means of regulating those uninsured individuals who will fail to pay for healthcare they receive.” Thus, “It is legally irrelevant that some sub-class of the uninsured will receive uncompensated care, for Congress cannot bootstrap from that proscribable practice to the substantially broader class of uninsured individuals who do not engage in it.”

Fifth, they argue that “forcing individuals to purchase health insurance exceeds Congress’s power to tax.” In support, they write that “the ACA’s text and longstanding precedent make clear that fining the uninsured for violating a statutory duty to be insured is not a tax, but a regulatory command enforced by a penalty.”

Finally, they argue that “the mandate’s unconstitutionality requires invalidating the entire ACA.” In support, they write that the “Act is a sprawling and complex legislative bargain, and that the heart of that compromise is the mandate and related insurance regulations that even the Government concedes cannot survive without it.” Thus, “Congress would never have enacted the ACA without these core provisions.”

Oral argument audio available at 2:00 p.m. Tuesday

The Fourth Circuit will release on its web site the audio of oral arguments in Liberty University v. Geithner and Virginia v. Sebelius at 2:00 EST Tuesday, only a few hours after the arguments have concluded. The arguments are scheduled to begin in Richmond at 9:30, with 40 minutes allotted to each case. Acting Solicitor General Neal Katyal will argue both cases for the United States.

The Fourth Circuit's release with the details is here.

The states' brief and standing

There are several interesting aspects to the brief filed yesterday by the 26 states in Florida v. HHS. Let me just address one here, and that is of the states' standing to challenge the minimum coverage provision.

Here is what may be noteworthy:

- The brief does not address the issue until page 67 of a 70-page brief, and then devotes only three pages to the question.

- The basis on which the district court found that Utah and Idaho had standing--the enactment of "health care freedom" statutes--was only listed third among the reasons the states have standing, and it was not ardently defended.

- Rather, the first reason the brief invokes is that the mandate will drive more individuals onto the states' Medicaid rolls, which will in turn cause injury to the state in the form of higher costs. As we have long discussed here, this is the most plausible basis for the states to have Art. III standing to challenge the minimum coverage requirement. But it depends on an empirical, causal connection between the mandate and Medicaid enrollment, a factual matter that was not developed in the district court.

Again, it is unclear exactly how much this matters here, in this case, given that there are individual plaintiffs as well, who seem to have standing in their own right. But I think, if anything, the brief's delicate treatment of the issue tends to confirm the shakiness of the states' standing, here and in Virginia v. Sebelius, to challenge the mandate.

A new drinking game

So after reading my roughly 500th ACA-litigation-related brief, motion, or filing of some sort, I think I have gotten a little punchy. But it occurs to me that a great new drinking game for those ACA litigation buffs who sit around on Friday nights drinking beers -- a huge cohort, I am sure -- would be to read aloud briefs filed by the challengers, and take turns drinking when the word "unprecedented" is used.

I'm not saying it is inaccurate, mind you. But let's just say the level of the use of this one adjective in this litigation has been, well, unprecedented.

The brief for the NFIB, Brown, and Ahlburg

The brief for the other plaintiff-appellees in Florida v. HHS--the National Federation of Independent Businesses, Kaj Ahlburg, and Mary Brown--has been filed and is available here.

Interestingly, the name of Professor Randy Barnett is on the cover as one of the brief's authors. He is no longer just amicus curiae, but now involved as part of the challengers' legal team.

The states' brief in Florida v. HHS

The brief has been filed, and you can access it here.

This is the first document in the litigation authored (at least in part) by Paul Clement, the former Solicitor General (and former King & Spalding partner), now of the Bancroft firm.

At least one of the plaintiffs-appellee briefs filed in Eleventh Circuit

The opening brief of some of the plaintiff-appellees in Florida v. HHS--the National Federation of Independent Businesses and the two private individuals (Kaj Ahlburg and Mary Brown)--has been filed at the Eleventh Circuit Court of Appeals in Atlanta. Or so indicates the docket sheet on PACER. The brief is not yet available electronically.

Also, it appears from the docket entry that this brief is separate from the one to be filed by the 26 states, the other plaintiff-appelles.

We will post the briefs here as soon as we have them.

The countdown to Tuesday

We are now only six days from oral argument before the Fourth Circuit in Virginia v. Sebelius and Liberty University v. Geithner in Richmond. These will be the first oral arguments in any court of appeals on the constitutionality of the Affordable Care Act.

All indications are that Acting Solicitor General Neal Katyal will argue the case on behalf of the United States, a rather extraordinary occurrence in the court of appeals. (Katyal just argued last Tuesday on behalf of the government in American Electric Power Co. v. Connecticut, the huge global warming-public nuisance case up on cert from the Second Circuit.)

Under a recently adopted Fourth Circuit policy, MP3 audio files of the arguments will be available within 48 hours after the arguments. But they might be posted sooner. Here is precisely what the Fourth Circuit's web site states:

Effective with the May 2011 argument session, links to Fourth Circuit oral argument audio files in MP3 format will be posted two days following argument. Audio files for high profile cases may be posted earlier.

From what I understand, the Fourth Circuit will be deciding in the next few days whether it plans to release the audio earlier than next Thursday--perhaps as early as Tuesday afternoon. (If anyone hears, please let me know.)

And again, we will not know the identity of the three judges sitting on the panel until Tuesday morning.

Article summarizing the states' challenges

With great help from a number of people--most notably, Brandon Douglass, Prof. Mitch Pickerill (Washington State University, political science), and some terrific anonymous reviewers--I have published an article in Publius: The Journal of Federalism, which reviews the states' challenges to the ACA. Publius is an interdisciplinary journal with an audience principally comprised of political scientists. It is a great journal, and it was a real honor to write the piece for them.

For most readers tuning in here, there really is nothing terribly original in the article. The chief aim of the piece was to make the legal intricacies of the two most plausible constitutional challenges--(1)that the minimum coverage provision exceeds Congress's enumerated powers, and (2) that the Medicaid amendments effectively commandeer the states--accessible to a broader audience.

If there is something interesting in the article, it lies in these three claims: (1) that the Supreme Court is quite unlikely to sustain the states' challenge to the Medicaid amendments, due to the extremely disruptive doctrinal implications it would entail; (2) that the Court is much more likely to invalidate the minimum coverage provision, given that it would be relatively simple doctrinally and have few doctrinal implications going forward; and (3) that Chief Justice Roberts, in my view, is the median voter in this case, not Justice Kennedy.

If you are interested, you can find the article here. (Of course, comments are always welcome and appreciated.)

The weeks ahead (revised)

With the Supreme Court having now denied review before judgment in Virginia v. Sebelius, here is what now lies ahead over the course of the next seven weeks in the principal cases, in chronological order:

(NOTE: a previous version of this schedule was off by a week in the due date for the United States' reply brief in Florida v. HHS. It also omitted the states' reply brief as cross-appellants in Florida v. HHS.)

* May 4: the plaintiff-appellees' brief is due at the Eleventh Circuit in Florida v. HHS.

* May 10: oral argument before the Fourth Circuit in Richmond, Virginia, in both Virginia v. Sebelius and Liberty University v. Geithner.

* May 11: amicus briefs in support of the plaintiff-appellees are due in Florida v. HHS.

* May 16: the plaintiff-appellants' brief is due at the D.C. Circuit in Seven-Sky v. Holder.

* May 18: the United States' reply brief is due at the Eleventh Circuit in Florida v. HHS (this will also be DOJ's brief on the merits as cross-appellee). 

* May 18: the panel of Sixth Circuit judges hearing Thomas More Law Center v. Obama is scheduled to be announced.

* May 23: amicus briefs in support of the plaintiff-appellants are due in Seven-Sky v. Holder.

* May 25: the plaintiff-appellees' reply brief is due at the Eleventh Circuit in Florida v. HHS.

* June 1: oral argument before the Sixth Circuit in Cincinnati, Ohio, in Thomas More Law Center v. Obama.

* June 8: oral argument before the Eleventh Circuit in Atlanta, Georgia, in Florida v. HHS.


Again, this omits the goings on in some of the lesser cases. But those cases seem increasingly unlikely to matter, at least to the resolution of the principal constitutional questions.

Court denies certiorari in Virginia v. Sebelius

The order list says this:

10-1014   VIRGINIA, EX REL. CUCCINELLI V. SEBELIUS, SEC. OF H&HS
  The petition for a writ of certiorari before judgment is denied.

No surprise. The focus now shifts back to the courts of appeals.

UPDATE: There do not appear to be any separate writings concerning the denial (a dissent or a statement) from any of the justices. Moreover, there is no indication that any of the justices did not participate in the consideration of the petition. Thus, as expected, neither Justice Kagan nor Justice Thomas were recused.

Once more unto the breach, dear friends

After re-listing the case last week, the justices of the Supreme Court presumably considered Virginia v. Seblius again at their conference this past Friday, April 22. Again, the fact that the Court re-listed the case does not tell us much of anything--or at least anything that signals that it is granting or denying Virginia's petition for a writ of certiorari before judgment; there are a raft of possible explanations for the re-listing, and they could cut either way. The Court will release an order list tomorrow morning at 10:00 EDT. And then we will learn if the Court made a decision on Virgina's petition at Friday's conference.

If the Court does nothing and re-lists Virginia v. Sebelius for a second time, the odds begin to grow that the Court will deny the petition, and that the delay is the result of a justice writing an opinion or statement to accompany the denial. After all, the entire point of granting certiorari before judgment would be to expedite the Court's review of the issue. It would be somewhat strange for the justices to delay for several weeks its ultimate decision to invoke an extremely rare procedure whose sole purpose is to expedite review. More generally, after more than two re-listings of a petition, the Court rarely grants certiorari. Typically something else is going on.

Moreover, as we discussed last week, as every day passes, the amount by which granting review now, in this case, would actually expedite the Supreme Court's decision on the ACA's constitutionality grows smaller. We are apt to have one or more court of appeals decisions no later than August, which leaves ample time for the cert petitions to be filed, the Court to grant review, and the Court to schedule argument for the 2011 Term. That would mean argument in roughly March 2012, and a decision by June 2012. Granting Virginia's petition for review before judgment might speed up the process slightly, but probably by no more than a couple of months.

We may know more at 10:00 tomorrow morning. But then again, we may not.

Supreme Court apparently takes no action

I just scanned the order list, and it appears that the Supreme Court did nothing with Virginia's petition. This could mean that a justice is writing a dissent from the denial; or that a justice is writing a statement respecting denial; or that a potential fourth justice to grant is unsure and needs more time; or even that the Court is unsure whether to deny or dismiss the petition (for lack of jurisdiction). We just don't know. And it is not obvious when we will find out, though the next most likely date is Monday, the next day scheduled for the release of an order list.

Why the Court is likely to deny cert

We are now about seven hours from the Court releasing its order list. And I am firmly convinced that the justices, without comment, will deny Virginia's petition for a writ of certiorari before judgment in Virginia v. Sebelius. The reason is quite straightforward.

Let's set aside the fact that granting certiorari before judgment is extremely unusual, such that doing so would immediately paint the Court as reaching out in an activist fashion to decide the question before necessary. Let's also set aside that Virginia has some very serious standing problems, making Virginia v. Sebelius potentially a bad vehicle for trying to decide the constitutionality of the minimum coverage provision. Finally, let's set aside the fact that Virginia's filings at the Court, in their content, have seemed geared more towards advancing the Virginia Attorney General's political career than exercising savvy strategic judgment in convincing the Court to expedite the case.

No, ignore all that. I think this comes down to a very simple, practical point: the Court is very likely to hear the case during its next term--the 2012 October Term--regardless. Even if the Court waits for a case to come up from one of the courts of appeals, it is likely to have a cert petition by November 2011. And that means the Court could hear the case in March or April of 2012, and decide the case by June 2012. Even if the Court were to grant Virginia's petition tomorrow, the effect would probably be to move up the Court's ultimate decision by only a couple of months. Given the potential costs--especially the potential political costs to the Court--how could that small time savings be worth it?

I do not think that it would. And that is why I suspect, at 10:00 EDT, we will see a simple order denying certiorari.

Conference at the Court

At this moment, the justices are now in conference, considering the various petitions for certiorari scheduled for today's deliberations. And one of those petitions, of course, is Virginia's petition for certiorari before judgement in Virginia v. Sebelius.

As discussed before, it is exceedingly unlikely that any information about the Court's decision will be released  today, especially since neither side has sought an expedited consideration of the petition. And it is also possible that the Court does not actually reach a decision on the petition today--that it defers its judgement and "re-lists" Virginia v. Sebelius for a subsequent conference.

Instead, we will probably learn something Monday morning at 10:00 EDT, when the Court releases its order list. That order list will reveal whether the Court has granted the petition, denied the petition, or that the justices need more time before announcing their decision.

The United States’ reply brief from Virginia v. Sebelius

The United States’s reply brief in Virginia v. Sebelius is broken into two parts: Part I, in which the United States is the Appellant, and Part II, in which the United States is a Cross-Appellee.

Part I makes the following arguments. First, that “Virginia lacks standing to challenge the minimum coverage provision.” Second, that “the minimum coverage provision is a valid exercise of Congress’s Commerce Power,” because (1) it “properly regulates the means by which people pay for health care services,” (2) it is “integral to the Affordable Care Provision is an Impermissible Means of Regulating Commerce.”

Finally, that “the minimum coverage provision is also independently authorized by Congress’s Taxing Power,” because (1) it “operates as a tax and will produce billions of dollars in annual revenue,” (2) it “is not punitive,” and (3) “the validity of a tax does not depend on its label.”

Regarding the severability issue, Part II argues that “the district court properly rejected the Commonwealth’s request to set aside Affordable Care Act provisions of unquestioned validity.” The United States contends that the “Plaintiff confuses the importance of the minimum coverage provision with the standards for determining whether valid provisions of a federal statute may be severed from a section of the statute that is held unconstitutional.” Relying upon Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., the United States writes that if “provisions are ‘fully operative as a law,’ they must be sustained ‘[u]nless it is evident that the Legislature would not have enacted those provisions . . . independently of that which is [invalid].’” Thus, the United States argues that because the Act “comprises hundreds of provisions, many of which are already in effect, and most which have not relationship whatsoever to the minimum coverage provision,” and because “[m]any provisions implicate the rights and implications of third parties,” the district court acted properly in refraining “from invalidating more of the statute than necessary.”

Donald Trump endorses Virginia's petition for cert before judgment

According to this report, Donald Trump and Gretta Van Susteren today lent their support to Virginia's effort to have the Supreme Court grant certiorari now and bypass the Fourth Circuit.

I am often unsure about what factors influence the Court's decision making. But I'm fairly confident that the views of Mr. Trump and Ms. Van Susteren are not two of them.  

More summaries

Chamber of Commerce:

The Chamber makes essentially the same two arguments in its brief in support of neither party as it did in its Fourth Circuit brief from last week. First, it argues that “if the minimum coverage mandate is held to exceed Congress’s constitutional powers, health insurance reforms in the PPACA should also be invalidated as non-severable from the mandate.” In support, the Chamber writes that “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,” and that “health insurance reforms beyond the guaranteed-issue and community-rating provisions are similarly intertwined with the individual mandate for severability purposes.” Among these provisions are the PPACA’s risk-adjustment provision, bar on annual limits for benefits, and its medical loss ratio provision.

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.”