U.S. files motion to dismiss in Coons v. Geithner

This news is a couple weeks old, but the United States has filed its motion to dismiss the plaintiffs' complaint in Coons v. Geithner, the case currently pending in the United States District Court for the District of Arizona.

The case is somewhat interesting in that the plaintiffs have raised constitutional objections to the ACA's creation of the Independent Payment Advisory Board (IPAB), the body established to study and issue reports on Medicare provider payments. Specifically, the plaintiffs claim that the ACA "fast track" provisions concerning how Congress is to vote on IPAB proposals unconstitutionally "entrenches" the IPAB against repeal by future Congresses, and that the ACA's grant of discretion to IPAB runs afoul of the non-delegation doctrine.

In its motion, the United States argues that the plaintiffs lack standing, as well as that their complaint fails to state any viable claims on the merits.

You can access the United States's motion to dismiss here, and you can access the plaintiffs' amended complaint here.

UPDATE: The specific "entrenchment" claim that the plaintiffs have raised is this (Count VI of their amended complaint):

The Act's entrenchment of IPAB's proposals, recommendations and enabling statutes from future modification, amendment or repeal by future congresses, causes irreparable injury by violating the First Amendment voting rights of Plaintiffs U.S. Representatives Flake and Franks and other federal legislators.

The Supreme Court's decision Monday in Nevada Commission on Ethics v. Carrigan, which held that a legislator's vote on legislation is not "speech" for purposes of the First Amendment, likely renders this claim untenable.

Challengers file brief in Kinder v. Geithner

As we wait for decisions from the Fourth, Sixth, and Eleventh Circuits, and for more briefing in Seven-Sky v. Holder, it has become a bit slow along the ACA litigation front. Alas, there is one news item from the week worth mentioning: the plaintiff-appellants have filed their brief at the Eighth Circuit in Kinder v. Geithner. You can access that brief here.

You may recall that the District Court in this case (Judge Rodney W. Sippel, E.D. Mo.) held that it lacked subject matter jurisdiction because none the plaintiffs had standing to raise their various claims. The lead plaintiff is Peter Kinder, the Lieutenant Governor of the State of Missouri, and the complaint makes several allegations as to how Missouri is injured by the ACA. But the court found that Kinder lacked any litigating authority under Missouri law to raise these claims, and that neither Kinder (nor any of the other individual plaintiffs in the case) had sufficiently alleged facts showing an injury caused by the Act suffered in their personal capacities. (The reasoning of the court's decision, whether right or wrong, is thus unaffected by the Supreme Court's decision yesterday in Bond v. United States.) You can read the district court's opinion dismissing the plaintiffs' complaint here.

Because the district court never reached the merits, it seems unlikely that the Eighth Circuit would do so on appeal. Still, the challengers have devoted 30 pages of their brief to arguing that the minimum essential coverage provision exceeds Congress's enumerated powers.

The United States's brief in this case is due July 13.

Katyal leaving SG's Office

And the news keeps coming.

Moments after learning that Donald Verrilli had been sworn in as Solicitor General, it now appears that Acting Solicitor General Neal Katyal has submitted his letter of resignation, effective at the end of the current Supreme Court term (presumably the end of June). According to Tony Mauro in this story, Katyal will be going into private practice in D.C. rather than back to Georgetown.

This just cements the supposition that Verrilli will appear for the United States in the upcoming ACA arguments, at least the important ones (which may well exclude those in the Third and Ninth Circuits).

Verrilli sworn in

Just following up with a story we mentioned earlier this week.

Yesterday afternoon, a day after Acting Solicitor General Neal Katyal argued on behalf of the United States in the Eleventh Circuit, Donald Verrilli was sworn in as the new Solicitor General of the United States. Katyal now slides back into his prior position as Principal Deputy Solicitor General. Leondra Kruger presumably slides back herself, though I am unsure precisely what title she now assumes.

This is relevant to the ACA because, assuming the Department of Justice continues to believe that its top appellate lawyer should be arguing these cases, we are apt to see Mr. Verrilli now argue (a) Seven-Sky v. Holder in the D.C. Circuit, September 23, and (b) the case at the Supreme Court, assuming that happens while Barack Obama is still in the White House.

The news comes via Howard Bashman and his great blog, How Appealing.

"I do not understand what you just said"

So stated Judge Marcus to General Katyal when the latter suggested that the "coercion test" of Dole may not be a true aspect of the constitutional doctrine to be applied by the court. Judge Marcus then went on to explain that the Court articulated a four-part test in Dole, and also articulated (as a fifth part) the non-coercion requirement, applied that non-coercion requirement, and ultimately upheld the federal legislation. Judge Marcus's point was that anyone who actually read Dole must come to the conclusion that the non-coercion requirement for spending conditions is a part of binding constitutional doctrine for courts to apply. 

Arguably, there is a smidgen of dramatic irony here. Part one of the four-part test that Judge Marcus referenced is that the federal spending program (and condition) must promote "the general welfare" of the United States. But then the Court, in a footnote, goes on to explain that whether a spending program promotes the general welfare may well be a purely political question, not meet for judicial review. Specifically, Chief Justice Rehnquist wrote thus:

The level of deference to the congressional decision is such that the Court has more recently questioned whether "general welfare" is a judicially enforceable restriction at all. See Buckley v. Valeo, 424 U.S. 1, 90-91 (1976) (per curiam).     

In other words, the very passage that Judge Marcus himself cited shows how a requirement might be a part of a constitutional test spelled out by the Supreme Court in one of its opinions, and yet not be something that is generally appropriate for federal courts to enforce.

So, with all due respect to Judge Marcus, General Katyal's statement may be perfectly understandable: the coercion test (just like the "general welfare" test) may be a requirement under the Constitution, but one that is (barring extraordinary circumstances) to be enforced through the political process, rather than the courts.

Revisiting the Medicaid question

Perhaps the most interesting--and surprising--development from Wednesday's hearing at the Eleventh Circuit was the panel's apparent interest in the question whether the ACA's Mediciad amendments are coercive, and thus amount to an unconstitutional commandeering of the states.

At the outset, here are some indications of the court's interest. First, in introducing the argument. Chief Judge Dubina stated that the panel found the questions of the constitutionality of the individual mandate and the ACA's Medicaid provisions "equally difficult." Second, both Dubina and Judge Marcus stated that they believed the coercion aspect of Dole, despite several circuit court decisions to the contrary, most definitely remains a binding element of constitutional doctrine. Third, Judge Marcus went so far as to ask Paul Clement whether, if the panel finds the Medicaid provisions unconstitutional, those provisions could be severed from the individual mandate or the rest of the ACA. In short, it is obvious that the court is taking quite seriously the states' claim that the ACA's expansion of Medicaid is unconstitutional.

As to the substance of the claim, Clement stated that there were two reasons (or perhaps three) that the ACA's expansion of Medicaid is coercive: (1) "the sheer volume" of the federal dollars at stake, and (2) the fact that the spending conditions imposed by the ACA "are not linked to the new money," but instead jeopardize all of a state's Mediciad dollars.

The potential third reason--though it is unclear whether it a reason for unconstitutionality, or instead a limiting principle, which would allow the court to invalidate the ACA's Medicaid provisions without throwing into doubt hundreds of other federal spending programs--is that the architecture of the ACA assumes that the Medicaid conditions are coercive. As stated by Clement, the Act has "no Plan B" for those Americans (under 65) who fall below 138 percent of poverty in the event a state actually withdraws from Medicaid. More specifically, the ACA (a) imposes an individual mandate on all Americans to acquire health coverage, (b) applies that mandate to everyone, including Americans below the poverty line, but (c) provides no subsidy for those persons falling below the poverty level (though it does provide subsidies for those between 133% and 400% of poverty). Thus, the ACA on its face assumes that every state will comply with the Act's Medicaid conditions, for this is the only way envisioned by the Act for indigent Americans to satisfy the mandate.

That is the argument, at least as I understand it. Now, it is unclear to me--at least at first blush--why the fact that Congress believes that every state will comply with a spending condition renders it coercive as a matter of law. One might also look at the ACA and say, "Boy, they really have a problem if one of the states decides not to go along," and thus think that Congress has left a pretty big hole in the Act. But Clement seems to be right in the sense that this sort of legislative scheme--whose effectiveness assumes and depends on the states' decision to accept the spending conditions--is unusual, if not unique.

We are still left with the basic problems with the overall coercion argument, though. The Supreme Court has never indicated that there is a particular problem in changing the conditions of a federal-state program, where new conditions attach to dollars that had previously been flowing to states in prior fiscal years. Indeed, that was precisely the case in Dole. Thus, the argument cannot rest on that factual circumstance alone, but that circumstance in combination with the "sheer volume" of the federal dollars at stake. A significant problem with that argument--perhaps one among many--is that it implies that any change to Medicaid imposing a condition to "preexisting dollars" would be unconstitutional. Indeed, all of the amendments to Medicaid over the past 20 of 30 years would presumably be unconstitutional, for they, too, attached to the preexisting streams and jeopardized all of a state's Medicaid funding (and the "sheer volume" of that Medicaid funding has been enormous for quite some time).

The one aspect of the Medicaid argument that I have yet to fully digest concerns what Clement said about the ACA's "maintenance of effort" provisions. These parts of the Act basically require states to lock in place the scope of their coverage as of the moment the ACA was passed, even though states had defined the scope of that coverage voluntarily and without knowledge as to the future consequences of those decisions under the ACA. This is the one aspect of the ACA that seems to raise traditional, contract-based reliance concerns among the states. So I want to think about how this affects the analysis a bit more. Otherwise, though, I do not think the argument has fundamentally changed the terms of the Medicaid question.

In all events, there is now much more action on the Medicaid front in this case than most had anticipated. And this just adds to the reasons that this case is the one probably most likely to go up to the Supreme Court.

More coverage of yesterday's argument

Timothy Jost at the Health Affairs Blog posted this summary today.

Wow!

Paul Clement just sat down. Much more interest, it appears, in invalidating the Medicaid provisions than I would have supposed. Perhaps most tellingly, Judge Marcus asked whether the Medicaid provisions were severable from the rest of the ACA.

Chief Judge Dubina does not appear terribly engaged. Perhaps this is just his style at argument. Or perhaps this suggests that what happens at argument is not all that important to his decision.

And the panel seems totally untroubled by any justiciability issues. Focus is entirely on the merits.

There is real danger in reading too much from argument. But boy, the ACA seems to be in some serious trouble here.

More coverage

You can find coverage from the Atlanta Journal Constitution here.

You can find coverage from USA Today here.

You can find coverage from Forbes here.

You can find coverage from the Orlando Business Journal here.

You can find coverage from Florida’s Capitol News Service here.

Coverage of today's argument

You can find coverage from the LA Times, the Wall Street Journal, and AP, here, here, and here.

Some quick reactions

I am listening now on C-SPAN radio. Here are a few, quick thoughts as General Katyal sits down:

* A very active bench.

* More skepticism about the constitutionality of the mandate than we have seen from any appellate panel thus far.

* No questions about Medicaid. Not one. Who knows for sure, but that seems like a decent indication that they are not interested in going there.

* Only about 45 seconds on the severability question.

Mr. Clement is now stepping to the dais.

Argument to be available on C-SPAN

At least, it appears that way.

If you go to this web page on the C-SPAN site, there is a link to play the argument--presumably the link will go live a few hours after the argument has ended (and they have had time to upload the audio).

In addition, I have been told that it will be broadcast on C-SPAN at 8:00 p.m. EDT tonight, though I have found no independent confirmation of this.

UPDATE: I have now been told that the arguments will be played on C-SPAN radio, available here, at 3:45 EDT this afternoon.

The Medicaid question

Thus far in the courts of appeals, the focus has been on the ACA's minimum coverage requirement (and whether the litigants have standing to challenge its constitutionality). Tomorrow, the arguments at the Eleventh Circuit will include the other significant constitutional issue raised to date: whether the ACA's amendments to Medicaid amount to a coercion of the states, and thus an unconstitutional "commandeering."

As discussed a few weeks ago, the states' position has shifted subtly on this issue. In the district court, the states emphasized not just the amount of federal dollars at stake, but also their reliance on Medicaid's continuing to exist in a particular form. The notion was that the states had agreed to participate in Medicaid with a certain understanding of the program, and the ACA had fundamentally changed those terms, leaving the states effectively caught over a barrel.

In their briefing at the Eleventh Circuit, though, the states now emphasize three factors that, at least in combination, render the ACA's expansion of Medicaid coercive: (1) the amount of federal funds at stake; (2) the disproportionality between the condition (the expansion of Medicaid according to the ACA's terms) and the sanction (the potential loss of all Medicaid dollars); and (3) the fact that the condition jeopardizes pre-existing federal funding--that is, the Mediciad funding the states were receiving before the enactment of the ACA, and not just the incremental dollars provided by the ACA itself.

As we have discussed at length on prior occasions, the states' position has a great deal of intuitive appeal. Most fundamentally, the states really do not have any practical choice but to accept the conditions that Congress imposes on Medicaid dollars. Particularly in the midst of the current economic downturn, it would be next to impossible for a state to forego the federal largesse. So in a very practical sense, the states do not have a choice--they are being compelled.

But the problem, from the beginning, has been translating that basic idea into a judicially administrable doctrine of constitutional law. And I do not think the states' reformulated argument ultimately does any better on that score. Consider, first, the objection that the ACA's condition jeopardizes pre-existing Medicaid dollars. Does this argument imply that Congress is forbidden from adding (or significantly altering) the conditions on an existing federal spending program without also providing additional funding? If so, how much additional funding? And does it mean that, when doing so, Congress can only condition the new funds on the new conditions? Any of these ideas would be radically new, not to mention rather odd constraints to place on the spending power. Or suppose Congress just repealed, and then re-enacted, the entire program. Under those circumstances, are there any pre-existing funds to which the "new" conditions cannot attach?

Or consider the idea of proportionality. Does this imply that whenever Congress creates a conditional spending program, it must provide a series of graduated financial penalties for every category of possible violation of the conditions by the states? If so, that certainly would be an idea never before expressed in a Supreme Court opinion. Would it mean that federal courts are to superimpose a sort of Eighth Amendment proportionality analysis on all threats to the withdrawal or suspension of federal funds? (To the extent the Supreme Court's Eighth Amendment jurisprudence is actually a rough analogue to the sort of analysis the states are suggesting, that review would be extraordinarily deferential. See Ewing v. California. Indeed, it should be more deferential for the withdrawal of funds than for the loss of liberty for life.)

As to the amount at stake, that ground has been well covered. Is it in proportion to the state's budget? Its taxing power? And where does this figure come from, exactly? How is a court to devise a manageable standard? Does this imply that the more money Congress provides the states, the less control it can exert over how those dollars are spent?

Perhaps, as the states' brief seems to suggest, it is not any one of these factors in isolation, but the three in combination, in the context of a singularly enormous federal spending program, which renders the ACA's Medicaid expansion unconstitutional. This is not implausible. But it is also hard to figure out how the Court could ever articulate a rule or principle of constitutional law that actually operationalizes the idea. Even if one could articulate it, the implications could be extremely destabilizing for constitutional law, and in an area that really matters (and matters on a regular, ongoing basis).

In short, in terms of the true values of federalism, the constitutional claim against the ACA's Medicaid amendments are not just viable, but they may actually be much stronger than the objections to the minimum coverage requirement. But I remain quite skeptical that this court (or the Supreme Court) will actually so hold. The judicial difficulties in implementing such a principle just seem too much to overcome.

Can anyone hook me up with a bootleg?

My days of tracking down illicit soundboard recordings of Nirvana and Pearl Jam have long since passed. Indeed, I guess it is a sign of life's progression that I openly seek anyone's assistance in obtaining a CD--not of Kurt Cobain, but of tomorrow's argument in Atlanta.

(Unlike the Fourth and Sixth Circuits, the Eleventh Circuit does not make audio of its arguments available online.)

As I understand it, the Eleventh Circuit's clerk's office will be selling them for $26 starting at about 2:30 tomorrow afternoon. (There is nothing on the web site about ordering them remotely.) I really do not want to put anyone through any trouble. But if you were planning on being there tomorrow, and would be obtaining a CD, is there any way I could ask you to get one for me? I would be more than happy to reimburse you for all the expenses, of course. You can reach me at bjoondeph@scu.edu.

Thanks!

Tomorrow's lawyers, in the news for other reasons

Tomorrow in Atlanta, Acting Solicitor General Neal Katyal and former Solicitor General Paul Clement will square off before Chief Judge Joel Fredrick Dubina, Judge Frank M. Hull, and Judge Stanley Marcus. At issue are (a) the constitutionality of the minimum coverage provision, (b) the constitutionality of the ACA's Medicaid amendments, in particular the provision requiring states to extend coverage eligibility to all legal residents under 65 at or below 138 percent of the federal poverty level, and (c) whether, if either of these provisions is unconstitutional, it can be severed from the remainder of the Act. A third lawyer, Michael Carvin, will argue on behalf of the NFIB and the two individual plaintiffs.

This is the first of the three appeals courts to have confronted the ACA that, at least as of now, has not asked for supplemental briefing on any jurisdictional issues. Moreover, this may be the first time in American history--I am just guessing here, but it seems like a reasonable guess--that the present Solicitor General and a former Solicitor General will face one another in a court of appeals. (It happens at the Supreme Court with relative frequency.) 


There are two items from yesterday's news related to Katyal and Clement, though they have nothing to do with Florida v. HHS. First, the Senate yesterday confirmed Donald Verrilli to be the next Solicitor General. I have not seen any indication of precisely when Verrilli will be sworn in--perhaps it has already happened. (Not that it matters to Katyal's authority to argue Florida v. HHS; he presumably just slips back into the post he served under Solicitor General Elena Kagan, as the Office's Principal Deputy.) But this is likely the final ACA case that Katyal will argue, and Verrilli will need to get up to speed for the next big argument--before the D.C. Circuit September 23 in Seven-Sky v. Holder. (The Third Circuit and Ninth Circuit cases do not seem too important, as the lower courts dismissed the cases purely on justiciability grounds.)


The second item concerns Paul Clement. It was revealed yesterday that he has been hired by the State of Arizona to defend its controversial immigration law, S.B. 1070, at the Supreme Court. This completes a trifecta of sorts for Clement in recent months in terms of brutally ideological and partisan litigation matters: (1) he represents the states in Florida v. HHS; (2) he represents the House of Representatives in defending the constitutionality of the Defense of Marriage Act; and (3) he represents Arizona in the defense of S.B. 1070. Clement is a terrific lawyer. And he is, by all accounts, an incredibly thoughtful and principled person--much less ideologically driven than most in high-powered D.C. circles. So it comes as a bit of a surprise that he is now, whether intentional or not, the face of the G.O.P. on perhaps the three most ideologically divisive issues currently under review in the federal courts. 


I doubt any of this really matters to the outcome of Florida v. HHS. It is hard to believe that the ACA litigation could become any more saturated with politics than it is now. But I have to wonder, at some level, whether Clement's alignment with all three of these issues--simultaneously--might subtly undermine his credibility with the justices. Again, I doubt it. But it seems possible in a way that it did not three months ago.

Ninth Circuit schedules oral argument in Baldwin v. Sebelius

The briefing was complete four months ago, but the Ninth Circuit has finally scheduled oral argument in Baldwin v. Sebelius, the case originating in the Southern District of California. The argument will be in Pasadena, California, on Wednesday, July 13.

You will recall that, in that district court decision, Judge Dana Sabraw held that the plaintiffs failed to "allege any particularized injury stemming from" the ACA, and thus lacked standing. Specifically, she reasoned that Baldwin had not indicated "whether he has health insurance or not," and that, regardless, "even if he does not have insurance at this time, he may well satisfy the minimum coverage provision of the Act by 2014: he may take a job that offers health insurance, or qualify for Medicaid or Medicare, or he may choose to purchase health insurance before the effective date of the Act."

Because the district court dismissed the case for want of standing, and thus never reached the merits, it seems unlikely that the Ninth Circuit would reach the question whether the minimum coverage requirement is constitutional. Were the court to disagree with Judge Sabraw and find that the plaintiffs had standing, the typical course would be to remand the case for further proceedings below. Nonetheless, the parties have briefed the merits, and there is nothing jurisdictionally that (if the court found standing) that would preclude the Ninth Circuit from reaching the question.

You can access the district court's opinion under review here.

And you can access the Ninth Circuit's oral argument scheduling order here.

(The identity of the Ninth Circuit panel will be revealed a week before the argument.)

Some essential reading

Well, perhaps not essential. But some very good academic writing on the constitutionality of the Affordable Care Act, for those so inclined. I have been meaning to compile a list for quite a while--and please let me know if I have missed something important. (Presented in alphabetical order, by author.)

The regulated activity

Much ink has been spilled over whether Congress--using its commerce power alone, or its commerce power in conjunction with the Necessary and Proper Clause--has the authority to regulate "inactivity." But there is a logically prior question--a question that is often quite tricky in enumerated powers cases--that must be resolved before reaching the inactivity issue. Namely, one has to define exactly what conduct Congress is regulating in the challenged provision.

It might seem that all one needs to do to answer this question is look at the specific law or code provision being challenged, assess what it governs in a common sense fashion, and thus determine what is being regulated. But I would argue that it is actually a very complicated inquiry.

This came into clearer focus for me as I was grading 77 constitutional law exams over the past three weeks. One of the issues in my exam concerned an express preemption provision, which stated that a state could not  maintain or enforce a law or regulation governing a particular subject. The details are unimportant; there are hundreds of similar express preemption clauses in the United States Code. But for purposes of illustration, it might be helpful to use a specific example.

Consider 46 U.S.C. §4306 (codifying §10 of the Federal Boat Safety Act). It states as follows:

Unless permitted by the Secretary under section 4305 of this title, a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment (except insofar as the State or political subdivision may, in the absence of the Secretary's disapproval, regulate the carrying or use of marine safety articles to meet uniquely hazardous conditions or circumstances within the State) that is not identical to a regulation prescribed under section 4302 of this title. 

What exactly is the activity that this provision regulates? Most directly, it regulates the lawmaking or law enforcement practices of state or local governments. More broadly, or perhaps indirectly, it regulates the manufacture or sale of watercraft in the United States, as the preemption provision is a means of establishing uniform, national safety standards for boats sold in the United States market, at least with respect to matters on which the Coast Guard has issued regulations.

Why does this matter? Well, the enactment or enforcement of laws by state or local governments is generally not considered conduct that is "economic" or "commercial" in nature. Thus, if we looked at §4306 in isolation, and what it directly regulated, we might well conclude that the law does not regulate any "economic activity" or "commercial activity," and thus exceeds Congress's commerce power.

But an express preemption provision like §4306 is plainly constitutional under present law, and uncontroversially so. And the reasoning goes like this: §4306 effectively regulates the commercial activities of manufacturing or selling boats, and thus is within Congress's authority to regulate interstate commerce. (Some might argue, even more precisely, that provisions like §4306 are justified by the Necessary and Proper Clause, as an appropriate means to the regulation of the interstate boat market. But I'm not sure this distinction (or addendum) really matters here, as what we are concerned with is Congress's authority to regulate interstate commerce, whether that stems from the Commerce Clause alone or the Commerce Clause augmented by the Necessary and Proper Clause.)

What does this have to do with the ACA? Well, a critical question that every judge must confront (or at least every judge reaching the merits) is whether the minimum coverage provision (a) regulates conduct in the health insurance market (as the challengers contend), or (b) regulates conduct in the health care services market (as the United States maintains).

In a direct and immediate sense, of course, the individual mandate regulates behavior in the insurance market. But one can easily argue (as with §4306 above) that what it really regulates is the payment for services in the health care service market. Sure, the provision, when examined in isolation, only directly concerns the purchase of health insurance. But the broader scheme, taken as a whole, shows that what Congress was actually regulating--of which the individual mandate is only a part--is the financing of health care services. Congress logically cared whether people carry health coverage not for its own sake, but due to its implications for the financing of services in the health care market, the ultimate object of its regulation.

So which is it? Which market does the minimum coverage provision actually regulate?

Unfortunately, constitutional law does not provide any obvious answer. And I do not think there is even much helpful precedent with respect to how a court is to evaluate the question (though I want to do some more research on this point to be sure). Courts attempting to define the "regulated activity" in enumerated powers cases seem to do so as much by intuition as anything else. Indeed, this is one of those questions that seems deceptively straightforward, to be determined by empirical reality rather than legal categories or doctrinal analysis. But that intuition, as is so often the case, can be misleading.

The larger point is that the relevant "regulated activity"--or, phrased differently, the relevant regulated market--is quite open to debate. The fact that the challenged provision only regulates a particular activity directly (state or local governments' lawmaking in the case of §4306, or the decision whether to acquire health insurance in the case of the ACA) does not provide the answer. The regulated activity or market, for purposes of evaluating whether the challenged provision is within Congress's enumerated powers, may well be different than the conduct that the provision directly governs. Answering the critical question is not as simple as examining the empirical realities of the challenged provision by itself.

I have no great insights to offer here (not that I ever do). Nor can I offer any answer as to how this problem should be approached. Rather, my rather modest point is that what seems like a relatively simple question is actually quite complex.

And it is obviously of enormous importance. For if the relevant market is only that for health insurance, the minimum coverage requirement looks truly unprecedented (and constitutionally problematic). But if the relevant market is that for health care services, then what Congress is regulating is a market in which virtually every American actively participates--and the minimum coverage provision is merely regulating the commercial terms on which that active participation occurs. And this framing, of course, makes it seem well within Congress's authority to regulate interstate commerce.

Supplemental briefing in the Fourth Circuit

On May 23, the Fourth Circuit asked the parties in both Virginia v. Sebelius and Liberty University v. Geithener to file supplemental briefs addressing a series of questions concerned the applicability and effect of the Anti-Injunction Act in the present controversies. (This issue also consumed a decent portion of the discussion yesterday at the Sixth Circuit, though the matter had not been briefed there.) Specifically, the Fourth Circuit asked the parties to address the following three 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. 

 The parties submitted those briefs at the Fourth Circuit Tuesday.

* You can find the United States's supplemental brief in Virginia v. Sebelius here.

* You can find Virginia's supplemental brief here.

* You can find the United States's supplemental brief in Liberty University v. Geithner here.

* You can find the supplemental brief of Liberty University et al. here.

In addition, the Pacific Legal Foundation has moved to file a supplemental amicus letter brief in Virginia v. Sebelius, which you can find here. No word yet on whether the court will grant PLF's motion.

More coverage

Charles Miller at the FedSoc Blog posted this summary earlier.

You can find Politico’s coverage here.

You can find coverage from the New York Times here.

You can find CNN’s coverage here.