U.S. files reply brief in Bryant v. Holder

This past week, the United States filed its "Reply in Support of Motion to Dismiss in Part and for Jurisdictional Discovery" in Bryant v. Holder, the case currently pending in the Southern District of Mississippi. The short of DOJ's argument is that none of the plaintiffs have alleged sufficient facts to support Article III standing. With respect to plaintiff Bryant (the Lieutenant Governor of Mississippi), the government argues that one of his claims should be dismissed outright. With respect to the other claims, the government argues that the district court should permit further discovery, so that plaintiffs would have the opportunity to allege sufficient facts (if possible) to establish the requisite injury in fact.

You can access the United States's motion here.

Amicus briefs in support of the United States filed in Seven-Sky v. Holder

By my count, thirteen amicus curiae briefs were filed by yesterday's deadline at the D.C. Circuit in support of the United States (the appellee) in Seven-Sky v. Holder. Here they are, in alphabetical order:

* The brief of AARP is available here.

* The brief of the American Association of People with Disabilities et al. is available here.

* The brief of the American Hospital Association et al. (corrected version) is available here.

* The brief of the American Nurses Association et al. is available here.

* The brief of Mortimer Caplin and Sheldon Cohen is available here.

* The brief of the Constitutional Accountability Center is available here.

* The brief of Constitutional Law Professors (namely, Professors Balkin, Metzger, and Morrison) is available here.

* The brief of the Economic Scholars is available here.

* The brief of Barry Friedman, Matthew Adler, et al. is available here.

* The brief of Maryland, California, Connecticut, Delaware, Hawaii, Iowa, New York, Oregon, Vermont, and the District of Columbia is available here.

* The brief of Massachusetts is available here.

* The brief of the National Women's Law Center et al. is available here.

* The brief of SEIU and Change to Win is available here.

Recent developments in Baldwin v. Sebelius

The Ninth Circuit is scheduled to hear oral argument a week from today (July 13) in Pasadena in Baldwin v. Sebelius. This was actually one of the first ACA cases decided by a district court (in this instance, the Southern District of California), but it has long since been lapped by several others.

Three noteworthy items have occurred in the past week in the lead up to oral argument that warrant some discussion:

* First, last Tuesday, the Ninth Circuit issued this order, stating as follows (as is relevant):

"Oral argument in this matter, scheduled for July 13, 2011, at Pasadena, California, shall be limited to 10 minutes per side. We advise the parties to focus their argument on the issues of jurisdiction and standing. Specifically, the parties should be prepared to discuss the effect, if any, of WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) and whether it is appropriate for this court to exercise jurisdiction under 28 U.S.C. § 1292(a)(1); and circuit precedent on standing in pre-enforcement challenges. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)."

This  indicates that the court is only interested in the jurisdictional issue (which was the only issue reached by the district court) and has no interest in getting to the merits, even if the court concludes that the plaintiffs have standing. Indeed, the Ninth Circuit seems to be treating this as an extremely narrow, fact-specific, subject matter jurisdiction appeal--and nothing more. (Oral argument was originally scheduled for 20 minutes per side.)

* On Wednesday, and partly in response to the Ninth Circuit's order, the plaintiff-appellants filed this letter with the court, in which they make the following contentions: (1) the Sixth Circuit's decision in Thomas More Law Center, which found that the plaintiffs there had standing to challenge the minimum coverage provision, supports their claim to standing here; (2) the court should not just restore argument to 20 minutes per side, but expand it to 30 minutes; and (3) given that the plaintiffs have sought a preliminary injunction, the court should reach the merits of whether the minimum coverage provision exceeds Congress's enumerated powers.

* On Thursday, the United States filed this letter in response to the plaintiff-appellants' letter. In it, the DOJ argues that (1) Thomas More Law Center does not support the plaintiffs' standing here, because the record as it stands (given the plaintiffs' declarations) shows no current or imminent injury from the mandate, and (2) there is no reason at all for the court to reach the merits of the mandate's constitutionality on this appeal, even if the plaintiffs have standing.

At the end of the day, this case looks like it will have little or no role to play in the larger drama. For even if the plaintiff-appellants are successful on this appeal (and it does not appear that they will be), the Ninth Circuit would almost certainly then just remand the case back to the district court to consider the merits in the first instance. And given the pace and workload of the Ninth Circuit, that remand might not occur for six months, regardless, at which point one of the other cases will be before the Supreme Court on the merits.

District Court grants U.S. motion for summary judgment in U.S. Taxpayers v. Sebelius

You might recall that the District Court for the Northern District of Ohio was waiting for the Sixth Circuit's decision in Thomas More Law Center v. Obama before issuing its ruling in U.S. Taxpayers Association v. Sebelius on cross-motions for summary judgment concerning the constitutionality of the minimum coverage provision. (Judge Dowd had previously dismissed the plaintiffs' three other claims in the case: that the ACA violates (1) plaintiffs’ freedom of expressive and intimate association guaranteed by the First and Fifth Amendments, (2) the Due Process Clause of the Fifth Amendment, or (3) plaintiffs’ constitutionally protected right to privacy.)

In light of the Sixth Circuit's decision, Judge Dowd on Friday granted summary judgment to the United States on the matter of the individual mandate. Here is the relevant passage:

"This Court is bound by the Sixth Circuit’s majority ruling in Thomas More that the minimum coverage provision of the Patient Protection and Affordable Care Act is a valid exercise of legislative power by Congress under the Commerce Clause. Therefore, the Court grants defendants’ motion for summary judgment on Count 1 of plaintiffs’ second amended complaint. Accordingly, defendants’ motion for summary judgment is GRANTED and plaintiffs’ motion for summary judgment is DENIED." 

You can access Judge Dowd's order here.

Summary of the United States' brief from Seven-Sky v. Holder

The United States makes essentially the same arguments in Seven-Sky as it has in the other courts of appeals thus far. First, it argues that “[t]he Minimum Coverage Provision is a valid exercise of Congress’s Commerce Power” because: (1) it “regulates economic activity that imposes a substantial burden on interstate commerce”; (2) it “is essential to the Act’s guaranteed-issue and community-rating reforms, which prohibit insurers from relying on medical condition or history to deny coverage or set premiums”; (3) it “is a necessary and proper means of regulating interstate commerce”; and (4) “Plaintiffs’ legal arguments contradict governing Commerce Clause precedent.”

Second, the United States argues that the Minimum Coverage Provision is also independently authorized by Congress’s Taxing Power,” because (1) it “operates as a tax,” (2) its “validity under the taxing power does not depend on how the assessment is labeled,” and (3) “Congress may impose taxes that also regulate the activity taxed.”

Finally, the United States argues that the district court was correct in rejecting the Plaintiff’s claim under the Religious Freedom Restoration Act (RFRA).

Randy Barnett's reaction to TMLC v. Obama

You can find it here. As always, Randy's thoughts are worthy of careful examination.

For what it is worth, I would quibble with his fifth point--that "Judge Martin accepted the requirement the Congress must regulate activity." I think a fairer reading is that Judge Martin concluded that what Congress is regulating via the minimum essential coverage provision is "activity," and thus any constraint on Congress's capacity to reach "inactivity" through its commerce power--if one can actually distinguish activity from inactivity in this context--is thus beside the point.

In any event, Randy's ideas are quite important. They are apt to be well represented in a soon-to-be-forthcoming cert petition, not to mention the briefs on the merits at the Court that really matters. 

Some early coverage of the Sixth Circuit's decision

In no particular order:

* Noam Levey and David Savage have this story in the Los Angeles Times.

* Andrew Cohen has this post at The Atlantic.

* Jennifer Haberkorn has this story in Politico.

* Kevin Sack has this story for the New York Times.

* Peter Landers has this piece in the Wall Street Journal.

* The AP has this story (via the Washington Post).

* Orin Kerr has this post at the Volokh Conspiracy.

* Lyle Denniston has this coverage at SCOTUSblog.

* Ariane de Vogue has this story at ABC News.

* Stephen Dinan has this story in the Washington Times.

* Howard Bashman has this coverage at How Appealing.

* Elizabeth Wydra has this post at The Huffington Post.

* Brian Beutler has this story at TPM.

UPDATE: And some more . . . .

* Jerry Markon has this story in the Washington Post.

* Ilya Somin has posts at the Volokh Conspiracy here and here.

* Jonathan Adler has this post at the Volokh Conspiracy.

* Andrew Koppelman has this post at Balkinization (also available here at The New Republic).

* Orin Kerr has this additional post at the Volokh Conspiracy.

UPDATE 2: And still more . . . .

* Tim Jost has this post at the Health Affairs blog.

* Nina Totenberg has this story at NPR.

* Joan Biskupic has this story at USA Today.

* Ilya Somin has this additional post at Volokh Conspiracy.

Digging deeper into Judge Sutton's opinion

Again, the critical piece to today's decision--both legally and politically--is Judge Jeffrey Sutton's opinion on the constitutionality of the individual mandate. Legally because, as the narrower rationale for the judgment, it is effectively the opinion for the court. And politically because Judge Sutton is, by reputation, a states-rights Republican, a former Scalia clerk with conservative bona fides, and a wickedly smart and widely respected judge. (He was, in my view, quite impressive at oral argument--indeed, the single most impressive of all the court of appeals judges sitting in the ACA cases.)

There are a number of noteworthy aspects to Judge Sutton's opinion. One is that it rather resolutely rejects the government's taxing power argument. Another is that it finds the standard of Salerno applicable--even though this is an enumerated powers question--and proceeds to ask whether there are any constitutional applications of the mandate.

But there are three points in particular that stand above the rest, and that are hugely helpful to to the United States--not the least because they are articulated by Judge Sutton:

* The Commerce Clause does not "contain an action/inaction dichotomy that limits congressional power." (P.43). Obviously, this conclusion is of enormous significance, for the essence of the challenge to the mandate is that it regulates inaction, and Congress has no authority to reach inaction under its power to regulate interstate commerce. In a lengthy discussion (pp.43-50), Judge Sutton explains why he believes there is no such limitation in the Constitution.

* There is no meaningful constitutional difference between (a) requiring individuals, at the point they seek health care, to demonstrate an ability to pay through insurance coverage, and (b) forcing individuals, before that acute need arises, to obtain such coverage. "Requiring insurance today and requiring it at a future point of sale amount to policy differences in degree, not kind, and not the sort of policy differences removed from the political branches by the word 'proper' or for that matter 'necessary' or 'regulate' or 'commerce.'" (Pp.49-50). Because everyone concedes that Congress can regulate the terms of the economic or commercial activity of obtaining health care, then it follows that Congress can, ex ante, require "insurance today."

* Health insurance is unlike most (if not all) other commercial products, such that upholding a mandate to acquire it would not empower Congress to force people to fill-in-the-blank (eat broccoli, join health clubs, buy GM cars, etc.). "Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them." (P.51).

Again, Judge Sutton is careful to note that he is only rejecting a pre-enforcement, facial challenge to the minimum coverage provision. But given these three points--combined with other language in his opinion concerning Congress's leeway to define the regulated class in a reasonable (if imperfect) fashion--it is difficult to see how an as-applied challenge could plausibly succeed. These three points (if accepted) largely eviscerate any plausible challenge to the mandate, no matter the person's individual circumstances.

In other words, the decision today looks like a facial validation of the ACA in all of its applications, de facto if not de jure.

TMLC v. Obama: A quick summary of the Sixth Circuit's holding

Given that the court split three ways, at least on certain questions, it is not a simple task to piece together the court's collective holding. Here is a quick overview--perhaps a bit simplistic, but I think it will suffice until I've had a chance to read the opinions more carefully:

1. The court unanimously concluded that it had subject matter jurisdiction: that at least one plaintiff had Article III standing, and that the Anti-Injunction Act did not deprive the court of jurisdiction.

2. Judges Sutton and Graham concluded that the minimum essential coverage provision is not a valid exercise of Congress's taxing power under the General Welfare Clause. Congress intended to impose a regulatory penalty, not a tax, regardless of the provision's practical operation or economic effects. Judge Martin does not reach this question.

3. Judges Martin and Sutton concluded, using different rationales, that the minimum essential coverage provision is a facially valid exercise of Congress's authority to regulate interstate commerce. Judge Graham dissents.
(a) Judge Martin concluded that the regulated activity--the decision as to how to finance the purchase of health care services--is economic in nature, and thus can be reached by Congress under the Lopez framework. In addition, the individual mandate is a necessary component of the ACA's broader regulation of the health insurance and health care services markets, and thus is justified by the holdings in Raich and Wickard.
(b) Judge Sutton concluded that the individual mandate is constitutional as applied to at least four discrete categories of individuals: (1) those who have already  purchased insurance voluntarily and who want to maintain coverage; (2) those who voluntarily obtained coverage but do not wish to be forced to maintain it; (3) those living in states that already require them to obtain insurance and who may have to obtain more coverage to comply with the mandate; and (4) those under 30, no matter where they live and no matter whether they have purchased health care before, who may satisfy the law by obtaining only catastrophic-care coverage. Because the mandate is constitutional as applied to a substantial number of persons to whom it applies, the pliaintiffs' pre-enforcement, facial challenge to the Act must fail under Salerno.
(c) Judge Graham would hold that the minimum coverage provision exceeds Congress's enumerated powers, stating that he "believe[s] the Supreme Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so." Judge Graham also concludes that Salerno is inapplicable in cases concerning Congress's enumerated powers (as opposed to cases seeking to vindicate individual rights).

"allowing the peoples’ political representatives . . . to have the primary say"

Judge Sutton concludes with a comparison to the debate over the Second National Bank, at issue in McCulloch, and the need for courts, in certain cases, to defer to the political process--at least when that process is capable of answering the question (P.53):

Any remaining doubt about rejecting this facial challenge is alleviated by the most enduring lesson of McCulloch, which remains an historical, not a doctrinal, one. No debate in the forty years after the country’s birth stirred the people more than the conflict between the federalists and anti-federalists over the role of the National Government in relation to the States. And no issue was more bound up in that debate than the wisdom of creating a national bank. In upholding the constitutionality of a second national bank, not a foregone conclusion, the Supreme Court erred on the side of allowing the political branches to resolve the conflict. Right or wrong, that decision presented the challengers with a short-term loss (by upholding the bank) and set the platform for a potential long-term victory (by allowing them to argue that Congress should not make the same mistake again). There was no third national bank. But see Federal Reserve Act, ch. 6, 38 Stat. 251 (1913). 

Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility. 

The breadth of the holding

Again, because Jusdge Sutton's reasoning is narrower than Judge Martin's, it is Judge Sutton's opinion that sets the boundaries of the court's collective rationale. Thus, this paragraph from Judge Sutton's opinion essentially defines the breadth of the court's holding:

"For now, whatever else may be said about plaintiffs’ activity/inactivity theory of commerce power, they have not shown that the individual mandate exceeds that power in all of its applications. Congress may apply the mandate in at least four settings: (1) to individuals who already have purchased insurance voluntarily and who want to maintain coverage, but who will be required to obtain more insurance in order to comply with the
minimum-essential-coverage requirement; (2) to individuals who voluntarily obtained coverage but do not wish to be forced (at some indeterminate point in the future) to maintain it; (3) to individuals who live in States that already require them to obtain insurance and who may have to obtain more coverage to comply with the mandate or abide by other requirements of the Affordable Care Act; and (4) to individuals under 30, no matter where they live and no matter whether they have purchased health care before, who may satisfy the law by obtaining only catastrophic-care coverage. The valid application of the law to these groups of people suffices to uphold the law against this facial challenge." (P.52)

Thus, Judge Sutton reserves the question of whether other plaintiffs, falling outside these categories, might successfully bring an as-applied challenge to the mandate.

The critical quote

From Judge Sutton's opinion:

"No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce." (P.45)

Hence, Congress is not regulating inactivity, and the minimum coverage provision, as it regulates economic activity, is constitutional.

BREAKING NEWS: Sixth Circuit upholds ACA as within Congress's power to regulate interstate commerce

The Sixth Circuit has just issued its opinion, rejecting the plaintiffs' challenge to the minimum coverage provision. The court split three ways, with no majority to completely uphold the mandate under the Commerce Clause. Judge Sutton concurred/delivered the opinion for the court on the point that the plaintiffs facial challenge must be rejected. More analysis to come shortly.

You can access the opinion here.

UPDATE: Judge Sutton's reasoning is narrower than Judge Martin's, but they both vote to hold that the minimum coverage provision, on its face, is within Congress's authority to regulate interstate commerce. Here are some crucial passages from Judge Sutton's opinion (which I assume will be effectively controlling--to the extent that matters--since it is the narrower of the two):

The individual mandate also steers clear of the central defect in the laws at issue in Lopez and Morrison. Health care and the means of paying for it are “quintessentially economic” in a way that possessing guns near schools, see Lopez, 514 U.S. 549, and domestic violence, see Morrison, 529 U.S. 598, are not. No one must “pile inference upon inference,” Lopez, 514 U.S. at 567, to recognize that the national regulation of a $2.5 trillion industry, much of which is financed through “health insurance . . . sold by national or regional health insurance companies,” 42 U.S.C. § 18091(a)(2)(B), is economic in nature. Nor does this approach remove all limits on the commerce power. As Lopez and Morrison suggest, a majority of the Court still appears to accept the line between regulating economic and non-economic conduct, which is why a general murder or assault statute would exceed congressional power. Measured by these conventional commerce clause benchmarks, the minimum-essential-coverage provision passes. . . .  

Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No—for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent “regulate,” “commerce,” “necessary” and “proper” might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce. . . . Second, the promise offered by the action/inaction dichotomy—of establishing a principled and categorical limit on the commerce power—seems unlikely to deliver in practice. . . . [Third, a]n enforceable line is even more difficult to discern when it comes to health insurance and the point of buying it: financial risk. Risk is not having money when you need it. And the mandate is one way of ensuring that all Americans have money to pay for health care when they inevitably need it. In this context, the notion that self-insuring amounts to inaction and buying insurance amounts to action is not self-evident.

Two new academic articles

As I discover new articles on the constitutionality of the ACA, I am adding them to the accessible through the "Academic articles" link to the right. Here, I want to note two very worthwhile articles recently added to that list:

* Gary Lawson & David B. Koppel, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate.

* Abigail Moncrieff, The Freedom of Health.

U.S. files brief in Seven-Sky

Enter the new Solicitor General, Donald B. Verrilli, Jr., whose name appears on the cover of the United States's brief as appellee, filed this afternoon at the D.C. Circuit in Seven-Sky v. Holder. This is one of the three cases (Liberty University and Thomas More Law Center being the other two) in which the district court reached the merits of whether the individual mandate is within Congress's enumerated powers and upheld the requirement as constitutional.

You can access the United States's brief here.

U.S. brief due today at the D.C. Circuit

The United States's brief is due today in Seven-Sky v. Holder (formerly known as Mead v. Holder), the case currently pending in the United States Court of Appeals for the D.C. Circuit (to be argued on September 23). This is likely to be the first ACA-related brief signed by the new Solicitor General, Donald Verrilli, Jr.

As of now (2:45 Pacific time), the brief is not yet up on PACER. We will post it here as soon as it available.

ACS panel on the constitutionality of the ACA

At its recent annual meeting, the American Constitution Society hosted a panel discussion on the constitutionality of the Affordable Care Act. You will recognize most of the panelists: Walter Dellingner, Randy Barnett, Dawn Johnsen, Simon Lazarus, and Walter Kamiat (attorney for SEIU). You can watch the video here.

(Thanks to Randy Barnett for pointing this out.)

Third Circuit argument today in Newark in NJ Physicians v. President

The United States Court of Appeals for the Third Circuit is today in Newark hearing oral argument in New Jersey Physicians v. President of the United States, No. 10-4600. The panel hearing the case consists of Circuit Judges Michael Chagares (appointed by President George W. Bush), Kent A. Jordan (appointed by George W. Bush), and Joseph A. Greenaway (appointed by President Obama). Beth Brinkman is arguing the case for the United States, and Robert Conroy is representing New Jersey Physicians.

Again, this should not be a significant decision, however it comes out, as the district court dismissed the case for lack of standing on very narrow, factbound grounds. In essence, the district court's holding was that the plaintiffs had failed to include any factual allegations in their complaint showing a discernible current harm from the need to purchase health insurance in 2014. Presumably, this could be fixed with a small change to their complaint (assuming, of course, the facts actually support the existence of such an impact).

We will post news stories about the argument this evening--if there are any.

UPDATE: Here is this brief AP story summarizing the argument, via the San Francisco Chronicle.

Sissel v. HHS reassigned to Judge Beryl Howell

Briefing on the the United States's motion to dismiss the complaint in Sissel v. HHS was complete as of January, and nothing has happened since. (Given that the D.C. Circuit will be hearing Seven-Sky in September, the district court may well be holding the case pending the Court of Appeals' decision, as it will obviously be bound by that decision.)

In any event, during this period of repose, the district court's calendar committee has randomly reassigned the case from District Judge Richard Leon to District Judge Beryl Howell. The order announcing the reassignment (dated June 3) gave no reason for the change.

Catching up on Bryant v. Holder

This is the case currently pending before District Judge Keith Starrett in the Southern District of Mississippi. In a prior incarnation of the lawsuit, Judge Starrett dismissed the plaintiffs' complaint without prejudice for failing to allege sufficient facts to support their assertion of standing. The plaintiffs then re-filed their complaint, and briefing is ongoing in the district court.

You can find the plaintiffs' amended complaint (styled as their "Third Amended Petition") here.

You can find the United States's motion to dismiss in part and for jurisdictional discovery here.

You can find the plaintiffs' memorandum in response to the United States's motion to dismiss in part and for jurisdictional discovery here.

The United States's rebuttal memorandum is due July 5.