More coverage

The Wall Street Journal has this piece on today’s oral argument. According to the Journal, the government’s arguments in favor of the ACA “received a mixed reception” from the panel.

The Journal writes that Judge Sutton questioned “the factual basis Congress used to support its decision to require individuals to maintain health coverage,” and concluded that it “is not proper to make people buy things—that’s the point.” The Journal notes, however, that Judge Sutton “said catastrophic health events can happen unexpectedly and he suggested that a citizen’s choice to forego health insurance is an economic decision that could be subject to federal regulation.” Meanwhile, the Journal writes that Judge Graham “expressed concern that the Obama administration’s arguments favored too broad a view of the power of the federal government,” and that Judge Martin was “not as tough” on the Solicitor General.”

Regarding standing, the Journal writes that the court “left open the possibility that it will not issue a ruling on the merits at all.” According to the Journal, Judge Sutton “said DeMars’ change in insurance status was problematic and may require the appeals court to send the case back to a trial judge for additional proceedings on whether any of the other plaintiffs has standing to sue.”

Oral argument audio now available

The argument audio is now available for streaming or download here.

For what it is worth, I am having some problems listening; the file seems to need burffering every five seconds or so.

TMLC v. Obama oral argument summary

There has been little coverage thus far, but you can find a summary from the San Francisco Chronicle and Bloomberg here. We will continue to provide updates as the coverage streams in.

On to Cincinnati

As if you need reminding, oral argument will take place tomorrow afternoon before the Sixth Circuit in Thomas More Law Center v. Obama. The argument is set to begin at 1:30 p.m. local time (EDT). As the Sixth Circuit's web site explains, audio of the argument should be available (for streaming or download) on the court's web site (which you can access here) roughly an hour after the argument has ended.

What to look for? We have been down this road before. Of course, there are the usual suspects: How much does the panel probe the activity-inactivity distinction? How hard do the judges push General Katyal for a limiting principle? Which market do the judges appear to accept the minimum coverage provision regulates--the health insurance market, or the health care services market?

In light of all the supplemental briefing in the past week, though, the focus may be on justiciability and quasi-justiciability questions. Have any of the plaintiffs established an injury in fact that, if not actual, is at least imminent? To what degree does it matter whether the plaintiffs are currently insured? Does it matter that the plaintiffs' basic argument for standing would essentially mean that anyone potentially subject to the mandate in 2014 would also have standing? Does this raise separate prudential standing questions, if not questions under Article III? To what extent does it matter whether this is a facial or as-applied challenge? (And what is the difference in this sort of a case, anyway?)

In particular, it will be interesting to see how focused Judge Sutton is on the justiciability issues. One might presume that Judge Martin is more likely than not to uphold the minimum coverage requirement, at least if the court reaches the question. But if Judge Sutton is troubled by the standing questions, or by the posture of the case as a facial challenge, one could easily foresee a pan-ideological consensus around the idea of kicking the case on jurisdictional (or quasi-jurisdictional) grounds, without the panel ever reaching the ACA's constitutionality.

And if that happens--in light of what may be happening in the Fourth Circuit's deliberations--the only case left standing (so to speak) with a good chance of reaching the Supreme Court next term might be Florida v. HHS.

Appellants file their opposition to the United States's motion to dismiss in TMLC v. Obama

Earlier today, the appellants in Thomas More Law Center v. Obama filed their response at the Sixth Circuit to the United States's motion to dismiss the appeal as moot. The appellants also filed two declarations in support of their opposition to dismiss--one from plaintiff John Ceci and one from plaintiff Steven Hyder.

The essence of the appellants' argument is that whether the plaintiffs have health coverage currently is irrelevant to whether they have an injury in fact for purposes of Article III. Because regardless of their current status (as insured or uninsured), they face the looming requirement of having to maintain minimally adequate health coverage every month beginning in January 2014, and this has current financial consequences. (One possible problem with this argument is that, taken to its logical conclusion, it seems to mean that everyone in the United States has standing to challenge the individual mandate, save those persons who know with reasonable certainty that they will be exempt from the requirement come 2014.)

You can find the appellants' response in opposition to the motion to dismiss here.

You can find the Ceci declaration here.

 And you can find the Hyder declaration here.

Sixth Circuit orders a response from appellants

The Sixth Circuit has asked the plaintiff-appellants in Thomas More Law Center v. Obama to respond in writing by 9:00 a.m. Tuesday morning to the United States's motion to dismiss the appeal as moot. A bit of an intrusion on the Thomas More Law Center's lawyers' three-day weekend, no doubt. But one suspects the Sixth Circuit panel might be a bit miffed about learning only yesterday (six days before oral argument) that Ms. DeMars has health insurance, though she has had the coverage for the past seven months.

U.S. moves to dismiss appeal in TMLC v. Obama as moot

Another fascinating development on the justiciability front.

In light of the supplemental letter brief filed by the plaintiff-appellants in Thomas More Law Center v. Obama late Wednesday--which disclosed that plaintiff Jann DeMars has had health insurance through her employer since October 2010--the United States has filed a motion in the Sixth Circuit urging the court to dismiss the appeal as moot.

The argument proceeds as follows:

* Because DeMars now has health coverage, she can allege no actual or imminent injury from the legal requirement that, beginning in January 2014, such coverage will be mandated. She is voluntarily engaging in that conduct right now, absent any legal requirement. Thus, she can show no injury from the coming requirement.

* Individual plaintiff Steven Hyder has done no more than make the bare allegation that the minimum coverage provision “negatively impacts me now because I will have to reorganize my affairs and essentially change the way I live to meet the government’s demands.” This is insufficient to establish an injury in fact. Indeed, every court to have found standing thus far (for an individual) has required more than such a conclusory assertion.

* Individual plaintiffs John Ceci and Salina Hyder did not submit any declarations in the district court proceeding. Moreover, argues the United States, "the complaint does not even allege that they will face imminent economic injury as a result of the minimum coverage provision." Hence, they have no standing.

* The Thomas More Law Center can only have associational standing to challenge the minimum coverage provision to the extent that one of its members has standing in his or her own right. But the only members identified in the complaint as suffering an injury are DeMars, the Hyders, and Cici.

In short, says DOJ, there is no one left who has standing. The appeal is moot and should be dismissed forthwith.

You can find the United States' motion to dismiss the appeal as moot here.

Plaintiff in TMLC v. Obama alerts court that she has acquired health insurance

Another interesting development in Thomas More Law Center v. Obama concerning whether the plaintiffs have standing. The plaintiffs have filed with the Sixth Circuit an additional letter, supplementing the letter brief they filed Monday, alerting the court that one of the individual plaintiffs in the case, Jann DeMars, is currently insured, having acquired health coverage through her employer in October. Here are the critical two paragraphs from the letter:

In October 2010, Plaintiff DeMars began purchasing healthcare insurance through her employer at a cost of $304.94 per month (the policy she purchased covers her child). While this reduced her financial burden from $9,914.28 (the estimated cost of an insurance plan if she purchased it outside of her employment) (R-28: Order at 5), to $3,659.28, it does not exempt her from the Act’s requirement that she maintain “minimum essential” coverage indefinitely, nor does it remove the financial burden of this requirement. Moreover, as she stated below in her declaration, as a responsible citizen she will comply with the Act rather than pay the penalty. Consequently, she was organizing (and continues to organize today) her affairs so that she could purchase insurance coverage prior to 2014 (and maintain that insurance coverage) and thus avoid the proscriptions of the Individual Mandate.4 (R-18: Pl.’s Supp. Decl. at ¶ 5, at Ex. 1). 

In the final analysis, there has been no material change in Plaintiff DeMars’ position (nor has there been a material change of facts that would deprive this court of its jurisdiction to hear this case)—she remains subject to the Act, and there is now and will be in the future a financial burden imposed as a result. Moreover, none of the other Plaintiffs has purchased health insurance coverage, thereby subjecting them to the penalty provision as well as the “economic burden” that is presently carried by all Plaintiffs, including Plaintiff DeMars. Thus, there can be no question that at least one Plaintiff has standing to exercise this court’s jurisdiction to hear and decide the case.

This, of course, makes it harder for DeMars to claim that, when she is legally required to purchase health insurance in January 2014, this requirement will be the cause of any injury in fact from the mandate, as she is now voluntarily engaging in the very act she claims will be causing her harm. (And perhaps it is just as difficult, by extension, for her to claim that she is having to take steps now in advance of that legal mandate.) Suffice it to say that much of the argument in Cincinnati next week may have little to do with the merits, and much to do with justiciability.

You can find the full text of the appellants' supplemental letter here.

Summaries of Seven-Sky v. Holder amicus briefs

Association of American Physicians & Surgeons et al.:

Here, amici argue that the individual mandate is unconstitutional because (1) it violates the “Fifth Amendment’s Equal Protection Component,” and (2) it violates the Takings Clause.

Caesar Rodney Institute:

The Caesar Rodney Institute argues the following. First, that the “PPACA does not contain an express jurisdictional element, limiting regulation to individuals participating in the interstate health insurance market.” Second, that the “Congressional findings underpinning the PPACA rely on a method of reasoning to invoke the Commerce Clause that the Supreme Court has already rejected as untenable.”

More on the Eleventh Circuit Panel

Chief Judge Joel Fredrick Dubina:

President George H.W. Bush appointed Judge Dubina to the Eleventh Circuit in 1990, and he became the Chief Judge of the Eleventh Circuit in 2009. In 2009, he served on a three-judge panel that denied Troy Davis’s second habeas corpus petition. He also served on the panel that denied Elian Gonzales’s asylum appeal. A New York Times article published at the time of the Elian affair contained the following:

Judge Joel F. Dubina, a former district judge from Alabama who was put on the appeals court by President Bush, is perceived as more of a centrist. He has weighed in on two prominent cases involving gay rights. Judge Dubina pleased gay activists by striking down a statute barring public funds from going to a gay college group, but he pleased their critics when he upheld a move by the state’s attorney general to withdraw a job offer to a lesbian. The judge faced criticism in his confirmation process for his reported membership in an all-white country club in Montgomery, Ala.

In 2003, Judge Dubina authored the Eleventh Circuit’s opinion in United States v. Pritchett, 327 F.3d 1183 (CA11 2003), which held—as a matter of first impression in the circuit—that the federal statute prohibiting receiving and possessing a stolen firearm (while knowing or having reasonable cause to believe that the firearm was stolen) was a proper exercise of Congress’s power under the Commerce Clause, because the government had established that the stolen firearm possessed by the defendant had traveled in interstate commerce at some point in the past, thereby establishing at least a minimal nexus with interstate commerce.

Judge Frank M. Hull:

President Clinton appointed Judge Hull to the Eleventh Circuit in 1997, and she has been involved in some fairly consequential cases involving the Fair Labor Standards Act (including one opinion that was joined by Chief Judge Dubina). You can find information on those decisions here and here. Recently, Judge Hull was in the news for sharply criticizing the Supreme Court’s decision in City of Ontario v. Quon for its “marked lack of clarity.” Judge Hull was also a member of the panel that upheld the district court judgment that refused to order the reinsertion of a feeding tube during the Terri Schiavo affair. In 1998, before the Supreme Court handed down United States v. Morrison, Judge Hull authored an opinion in United States v. Viscome, 144 F.3d 1365 (CA11 1998), which held that the federal statute proscribing the use of a weapon of mass destruction against a person in the United States was a proper exercise of Congress’s power under the Commerce Clause because, in enacting the statute, Congress had made explicit findings that the proscribed activity substantially affected interstate commerce.

Judge Stanley Marcus:

Though a Republican, President Clinton appointed Judge Marcus to the Eleventh Circuit in 1997. Prior to his joining the judiciary, Judge Marcus served as a U.S. Attorney in Brooklyn, Detroit, and Miami. He authored an opinion on March 16 of this year (United States v. Jordan, 635 F.3d 1181 (CA11 2011)) upholding the federal felon-in-possession statute as within Congress’s commerce power—though this was merely a reaffirmation of a long line of Eleventh Circuit precedent. More importantly, in March 2009 he authored an opinion concluding that the federal Sex Offender Registration and Notification Act was within Congress’s authority to regulate interstate commerce, concluding that the SORNA was “reasonably adapted to the attainment of a legitimate end under the Commerce Clause.” United States v. Ambert, 561 F.3d 1202, 1212 (CA11 2009). Judge Marcus also authored the Eleventh Circuit’s opinion in Johnson v. Board of Regents, 263 F.3d 1234 (2001), that invalidated the University of Georgia’s freshman admissions policy, which awarded a set “diversity bonus” to non-white applicants, as a violation of the Equal Protection Clause. (This view was ultimately vindicated by the Supreme Court in its Gratz v. Bollinger decision two years later.)

CA11 panel in Florida v. HHS

* Chief Judge Joel Fredrick Dubina

* Judge Frank M. Hull

* Judge Stanley Marcus

States file their reply brief in Florida v. HHS

The states have filed their reply brief at the Eleventh Circuit in Florida v. HHS. You can find the brief here.

We still await the reply brief of the the other appellee/cross-appellants: the NFIB, Kaj Ahlburg, and Mary Brown. Once that has been filed, the briefing in the Eleventh Circuit will be complete.

CORRECTION: There will be no such brief filed, since these plaintiff-appellants are not cross-appealing the award of summary judgment to the United States on the claim that the ACA's Medicaid amendments exceed Congress's spending power (and thus amount to an impermissible commandeering of the states). So the briefing in the Eleventh Circuit now is, indeed, complete.

Amicus briefs supporting the challengers filed in Seven-Sky v. Holder

The amicus curiae briefs in support of the plaintiff-appellants, or in support of neither party, have been filed at the D.C. Circuit in Seven-Sky v. Holder. Again, this case will be argued September 23 before Judges Kavanaugh, Edwards, and Silberman.

Here are the briefs, in alphabetical order:

* The brief of the Association of American Physicians & Surgeons et al. is here.

* The brief of the Caesar Rodney Institute is here.

* The brief of Catholicvote.org is here.

* The brief of the CATO Institute et al. is here.

* The brief of the Chamber of Commerce of the United States (in support of neither party) is here.

* The brief of Judicial Watch is here.

* The brief of the states of Texas, Florida, Alabama, Indiana, Kansas, Maine, Michigan, Nebraska, North Dakota, Ohio, Pennsylvania, South Dakota, Washington, and Wisconsin (filed by Paul Clement) is here.

* The brief of Steven J. Willis is here.

U.S. files letter brief in TMLC v. Obama

Late yesterday, the United States filed its letter brief at the Sixth Circuit in Thomas More Law Center v. Obama, which you can find here.

In addition, the appellants today filed a one-paragraph letter with corrections to some of the citations contained in the letter brief they filed yesterday. You can find that letter here.

Appellants have filed their letter brief in Thomas More Law Center v. Obama

The plaintiff-appellants (Thomas More Law Center et al.) have filed their letter brief at the Sixth Circuit in Thomas More Law Center v. Obama. The letter responds to the questions raised eleven days ago by the panel, which concern standing, ripeness, the IRS's enforcement powers, and the distinction between facial and as-applied challenges in this context. The United States's letter brief is also due today, but it has not yet been docketed at the Sixth Circuit.

You can find the appellants' letter brief here. 

Panel and date set in Seven-Sky v. Holder

Yet another big development today: the D.C. Circuit has announced the identity of the panel to hear Seven-Sky v. Holder and set the date for oral argument, September 23.

The judges to hear the case are:

1. Circuit Judge Brett Kavanaugh (G.W. Bush appointee).

2. Senior Circuit Judge Harry T. Edwards (Carter appointee).

3. Senior Circuit Judge Laurence H. Silberman (Reagan appointee).

This is a richly diverse panel of judicial heavyweights. Kavanaugh was one of the more controversial Bush 43 appointees, blocked for several months by Senate Democrats, involved in the Clinton impeachment as Associate Counsel to Kenneth Starr during his investigation. Judge Edwards has long been an intellectual leader of relatively liberal judges within the federal judiciary. And Judge Silberman is one of the more important circuit judges of his generation, a Reagan appointee with a fiercely independent streak. He recently served as a co-chair of the Iraq Intelligence Commission, which investigated the intelligence failures surrounding the invasion of Iraq and the (lack of) weapons of mass destruction. He was rumored to be a candidate for Attorney General following the resignation of Alberto Gonzales.

It is a star-studded cast, and it should make for a terrific oral argument. And this may be a real blessing for the administration, in this sense: if the government can win the vote of Kavanaugh or Silberman, it might carry a great deal of weight at the Supreme Court.

You can find the D.C. Circuit's order here.

Order for supplemental briefing in the Fourth Circuit cases

The Fourth Circuit panel deciding Virginia v. Sebelius and Liberty University v. Geithner has issued an order requesting supplemental briefing on questions that concern the court's jurisdiction. Here is the text of the order, identical in both cases:

The court directs the parties to file supplemental briefs, not to exceed 10 pages, by the close of business on May 31, 2011 addressing the following questions: 

1. When applicable, does the Anti-Injunction Act, 26 U.S.C. § 7421(a), deprive a federal court of subject-matter jurisdiction? See J.L. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 5-8 (1962). If so, does it divest federal courts of jurisdiction in this case? See Bob Jones University v. Simon, 416 U.S. 725, 736-48 (1974). 

2. Can a court determine that a challenged exaction qualifies as a “tax” for purposes of the Anti-Injunction Act without reaching the question of whether the exaction qualifies as a “tax” for purposes of Art. I, § 8, cl. 1? Compare Bailey v. George, 259 U.S. 16 (1922), with Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). 

3. Assuming the Anti-Injunction Act does apply in this case, does a plaintiff have the ability to challenge the exaction provided by § 5000A in a refund suit or otherwise? See 26 U.S.C. § 7422(a); 28 U.S.C. §§ 1331, 1340, 1346. 

Entered at the direction of Judge Motz with the concurrence of Judge Davis and Judge Wynn.

A fascinating development. Who knows how this will all unfold, of course, but--combining this with what the Sixth Circuit panel is considering in Thomas More Law Center--it is starting to become conceivable that no circuit court is going to issue a decision on the merits any time soon.

You can find the the order for supplemental briefing in Virginia v. Sebelius here.

And you can find the the order for supplemental briefing in Liberty University v. Geithner here.

Judge Motz, Comstock, and the Necessary and Proper Clause

As we mentioned last week, Judge Motz wrote the Fourth Circuit’s opinion in Comstock v. United States, a case that has played and will continue to play a large role in this litigation. Because both sides of the ACA litigation have cited to Comstock, we think this is an excellent opportunity to discuss the decision and its greater implications. The following summarizes the statute at issue in Comstock, Judge Motz’s opinion, and the Supreme Court’s decision reversing Judge Motz.

United States concedes non-severability of some ACA provisions

I have just finished a first read of the brief filed by the government today in Florida v. HHS. There are several interesting points, but here I just want to highlight perhaps the most significant: the United States is now conceding that the ACA's community-rating and guaranteed-issue provisions are not severable from the minimum coverage provision. The government had essentially conceded as much in a hearing before the district court, but I think this may be the first time it has done so in a brief.

There is a fair amount of strategic sense to this. First, making such a concession only bolsters the government's argument that the minimum coverage provision is essential to the ACA's broader regulation of the health insurance or health care services markets. Second, it makes the government seem more reasonable. Third, it essentially forces the Supreme Court's hand a bit when the case ultimately gets there: if the justices want to take down the mandate (which might be politically popular), they will also have to bring down the ACA provisions that overwhelming majorities of Americans support. And that would not be so popular.

UPDATE: As astute reader Mark Regan points out, the United States had, in fact, conceded the non-severability of these provisions in its motion for summary judgment: "[S]ome limited set of provisions of the Act cannot survive if the minimum coverage provision is stricken. As defendants repeatedly have made clear—in passages that plaintiffs inflate beyond their obvious meaning—the guaranteed issue and community rating insurance industry reforms in Section 1201 will stand or fall with the minimum coverage provision." But I think the government has been much cagier about the point in its appellate briefing until now. In all events, its position is now clear.

U.S. files its reply-response brief in Florida v. HHS

The United States has today filed is reply brief-response brief as cross-appellee in Florida v. HHS at the Eleventh Circuit. You can access the brief here.

One more brief is due in this case--the chellengers' reply brief a week from today--and then oral argument will take place Wednesday, June 8, in Atlanta.