Briefing schedule set in Coons v. Geithner

District Court Judge G. Murray Snow (D. Ariz.) has issued an order setting the summary judgment briefing schedule in Coons v. Geithner, the case that, among other things, challenges the constitutionality of the ACA's Independent Payment Advisory Board (which will make recommendations to Congress concerning Medicare reimbursement). Here is the schedule:

* August 10: The United States's opposition to the Plaintiffs’ Motion for Partial Summary Judgment and/or Cross Motion for summary Judgment is due (limited to 40 pages).

* August 29: Plaintiffs’ reply in support of their Motion for Partial Summary Judgment and/or opposition to defendants’ motion for summary judgment is due (limited to 30 pages).

* September 12, 2011: Defendants’ reply in support of their motion for summary judgment is due (limited to 20 pages).

You can access Judge Snow's order here.

TMLC v. Obama docketed at the Supreme Court

Lyle Denniston reported on this last week, but I wanted to mention that the Supreme Court has officially docketed the challengers' cert petition in Thomas More Law Center v. Obama. The docket number is 11-117. Now that we are at the Supreme Court--and no longer in the land of the lower federal courts--PACER is no longer necessary to follow the developments. You, too, can follow every entry on the docket at this link.

More essays on SCOTUSblog

As part of the ongoing symposium on the constitutionality of the ACA, SCOTUSblog has posted the following essays over the past two days:

* David Kopel, Granting Certiorari to an ACA Challenge.

* Dawn Johnsen, The Simple Case for the Affordable Care Act's Constitutionality.

* Ilya Shapiro, The Individual Mandate: An Unprecedented Expansion of Federal Power.

* John Kroger, The Constitutionality of the ACA Is Not a Close Call.

* Abbe R. Gluck & Gillian Metzger, Just the Facts: Health Economics and Constitutional Doctrine.

A link to all of the essays in the symposium is also accessible through the "Academic articles" link on the top right of this page.

Third Circuit affirms dismissal in New Jersey Physicians v. President

The Court of Appeals for the Third Circuit has just issued its opinion in New Jersey Physicians, Inc. v. President of the United States, and it has affirmed the District Court's dismissal of the complaint for lack of jurisdiction. Specifically, it held that the plaintiffs have failed to establish Article III standing.

Here is the critical passage of the opinion:

The only allegations pertaining to any injury in fact suffered by Patient Roe are as follows: (1) “Roe is a patient of Dr. Criscito who pays himself for his care,” and (2) Roe “is a citizen of the State of New Jersey who chooses who and how to pay for the medical care he receives from Dr. Criscito and others.” These allegations are factually barren with respect to standing. The first apparently suggests that Roe pays for his own health care. The second reveals only that, before Roe pays, he chooses his doctor and his method of payment. It provides no specifics as to whom Roe chooses or how Roe pays. These allegations are insufficient to establish injury in fact.   

This is another win for the United States, but on extraordinarily narrow, factbound grounds. It really means rather little--if anything--in the broader drama.

You can access the Third Circuit's opinion here.

The waiting game

Today marks exactly twelve weeks since the Fourth Circuit panel heard arguments in Virginia v. Sebelius and Liberty University v. Geithner. And tomorrow will be the eight-week anniversary of the argument before the Eleventh Circuit in Florida v. HHS. Given that the Sixth Circuit has already handed down its decision in a much shorter time (29 days), and that the certiorari window for the Supreme Court's 2011 Term is slowly (but surely) closing, one would suspect that the Fourth and Eleventh Circuits will be issuing their decisions shortly.

What is at stake? In some sense, not much. Most everyone believes that the issue is headed to the Supreme Court, and these are just the preliminaries. Of course, the sifting and vetting of the arguments has some importance in refining the relevant questions. And opinions like Judge Sutton's can really make a difference in altering the political dynamic and shaping the ideological cast of certain questions. But generally, the game that really matters will be played on a different field.

With one important exception.

To me, this seems unlikely, but it is at least possible. Suppose both the Fourth Circuit and the Eleventh Circuit uphold the ACA as constitutional. (I think the former is likely, the latter unlikely.) If all three circuits to have decided the question have come out the same way, would the Supreme Court even grant cert? I am not sure that it would.

There remains Seven-Sky v. Holder, to be argued before the D.C. Circuit on September 23. So even if the Fourth, Sixth, and Eleventh Circuits all upheld the Act, the D.C. Circuit could disagree and create the split. But that decision likely would not come down until the late fall or early winter. The Court could expedite the case, of course, but generally that timing would mean that the Court would not hear arguments until the 2012 Term -- and had down its decision some time in 2013, after the presidential election.

All of which is to say that, if the circuit courts all agree to uphold the ACA, it could put the Supreme Court in a much more complicated position in terms of deciding whether (and when) to hear the case. And it might mean that the case never even gets to the Court -- something the justices might actually be quite grateful for.

Post-argument filing in Goudy-Bachman

On July 21, the District Court for the Middle District of Pennsylvania (Judge Christopher C. Conner) heard argument on the parties' cross-motions for summary judgment in Goudy-Bachman v. HHS. The sole claim at issue is whether the minimum essential coverage provision exceeds Congress's enumerated powers.

Yesterday, the plaintiffs filed one last brief for the summary judgment stage: their "Reply to Defedants' Brief in Opposition to Plaintiffs' Motion for Summary Judgment." You can access that brief here.

Two more essays in the SCOTUSblog symposium

Robert Levy, chairman of the board of the CATO Institute, has this essay entitled PPACA's Mandate: Not Commerce, Not Interstate, Not Necessary, Not Proper.

And some scrub has this essay entitled Five Questions That Matter.

You can find a running list of all the essays, as they are posted, here.

SCOTUSblog symposium on the constitutionality of the ACA

SCOTUSblog, the place to find information and analysis of the goings on at the Supreme Court, is hosting a series of symposia on "pipeline" cases--high-profile disputes apt to reach the Supreme Court in the next year or so. In July, the subject was Arizona v. United States, the case about Arizona's controversial immigration law, S.B. 1070. Over the next couple of weeks, the subject is the constitutionality of the Affordable Care Act.

You can find the names of the contributors here. (A pretty impressive list, with one notable exception.) And here is the first entry in the series, a piece by current Harvard law professor (and former Solicitor General) Charles Fried. Fried argues that the constitutional attack on the ACA is "pure politics"--that there is no salience to the action/inaction distinction, and that the minimum coverage provision is plainly within Congress's enumerated powers.

A quick summary of the cert petition

I just finished a quick read of the petition for certiorari in TMLC v. Obama. For those who have read the lower court briefs in this case, there is nothing new. Here are the essential points:

1. In the exercise of its power to regulate interstate commerce, Congress can only regulate "economic activities."

2. Even if Congress can regulate non-economic activities under it's commerce power, what it regulates must still be an "activity," and not merely a decision to do nothing.

3. These limitations apply even when Congress is regulating a discrete practice on the ground that doing so is integral to a larger regulatory scheme, which scheme plainly regulates interstate commerce (e.g., in Wickard and Raich).

4. This limitation must exist, for without it, Congress would have a plenary police power to regulate anything and everything, and the Constitution's basic structural principles would be lost.

5. The facial/as-applied distinction is beside the point in this context; either the minimum coverage provision is valid or it is void as exceeding Congress's enumerated powers.

To be sure, there are some additional details to the arguments. But the petition has little truck with subtlety. These are the basic points, as they have been since the plaintiffs filed their complaint sixteen months ago.

Plaintiffs file cert petition in TMLC v. Obama

We could finally be approaching the end game. The plaintiffs in Thomas More Law Center v. Obama, who recently lost at the United States Court of Appeals for the Sixth Circuit, have filed a petition for a writ of certiorari at the Supreme Court. Here are the questions presented, as phrased in the petition:

1. Does Congress have authority under the Commerce Clause to require private citizens to purchase and maintain “minimum essential” healthcare insurance coverage under penalty of federal law? 

2. Is the individual mandate provision of the Act unconstitutional as applied to Petitioners who are without healthcare insurance?

This is technically the third ACA-related petition to reach the Court. But the two prior petitions (those in Baldwin v. Sebelius and Virginia v. Sebelius)--both of which were denied--were petitions before judgment. This is the first to reach the Court, obviously, after a decision from the Court of Appeals.

You can access the petition here.

Plaintiff-appellants file reply brief in Seven-Sky v. Holder

The challengers in Seven-Sky v. Holder yesterday filed their reply brief at the D.C. Circuit. You will remember that this is the case in which the District Court upheld the minimum essential coverage provision under Congress's power to regulate interstate commerce, and in which argument will be held September 23 (before Circuit Judges Harry Edwards, Laurence Silberman, and Brett Kavanaugh).

You can access the appellants' reply brief here.

Oral argument today in Goudy-Bachman v. HHS

Oral argument will begin in approximately one hour (at 1:30 p.m. EDT) in Courtroom No. 2 at the Federal Building in Harrisburg, Pennsylvania, in Goudy-Bachman v. HHS. The district judge assigned to the case is Christopher C. Conner, a George W. Bush appointee. At issue are cross-motions for summary judgment by the plaintiffs and the United States. The plaintiffs' sole claim on the merits is that the minimum essential coverage provision exceeds Congress's enumerated powers. (You can find all the papers that have been filed in this case in the far right-hand column, near the bottom of the page.)

Appellants file reply brief in U.S. Citizens Association v. Sebelius

The plaintiff-appellants have filed their reply brief at the Sixth Circuit in U.S. Citizens Association v. Sebelius. This completes the briefing in the case. The Sixth Circuit has yet to schedule the case for oral argument.

You can access the brief here.

United States files its reply brief in Goudy-Bachman v. HHS

The United States has filed its reply brief in Goudy-Bachman v. HHS, the case currently pending in the District Court for the Middle District of Pennsylvania. The brief is formally titled "Defendants' Reply in Support of Motion, in the Alternative, for Summary Judgment and Memorandum in Opposition to Plaintiffs' Cross-Motion for Summary Judgment."

Whatever it is, exactly, you can access it here.

Two amicus briefs filed in support of appellants in Kinder v. Geithner

Kinder v. Geithner is the case currently pending in the Eighth Circuit. The District Court for the Eastern District of Missouri dismissed the plaintiffs' complaint (opinion here) on the ground that none of the plaintiffs had established an injury in fact sufficient to sustain Article III standing. The plaintiff-appellants filed their brief just over a month ago (available here). On Monday, two amicus curiae briefs were filed at the Eighth Circuit in support of the plaintiffs.

* A brief on behalf of Texas, Florida, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Louisiana, Maine, Michigan, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Utah, Washington, and Wisconsin (authored by Paul Clement, counsel to the states in Florida v. HHS), which is available here.

* A brief on behalf of 154 state executive and legislative officials from states within the Eighth Circuit (which comprises Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), which is available here.

The United States's brief as appellee is due August 11.

Procedural machinations in Coons v. Geithner

This is the case that is currently pending in the District Court for the District of Arizona. It stands out a bit because, in addition to challenging the minimum essential coverage provision, the plaintiffs assert that various aspects of the IPAB (the Independent Payment Advisory Board, created by the ACA) are unconstitutional.

There have been a slew of procedural developments in the case over the past three weeks. Here they are, in chronological order:

* First, you might recall that the United States filed its motion to dismiss on May 31 (which you can access here).

* On June 20, the plaintiffs filed a motion to treat the United States's motion to dismiss as a motion for summary judgment in part. (You can access that motion here.)

* On that same day, the plaintiffs filed a memorandum in response to the United States's motion to dismiss and in support of their own motion for summary judgment in part. (You can access that brief here.)

* The following day (June 21), the Pacific Legal Foundation filed a brief as amicus curiae  in opposition to the United States's motion to dismiss and in support of the plaintiffs' motion for summary judgment (which you can access here.)

* On June 23, the United States filed this memorandum in which it expressed its opposition to treating its motion to dismiss as a motion for summary judgment in part, and it moved the district court to stay the plaintiffs' motion for summary judgment until after the court had ruled on the United States's motion to dismiss.

* On July 5, the United States filed its reply brief in support of its motion to dismiss (which you can access here).

* On July 7, the plaintiffs filed a memorandum in response to the United States's motion for a stay and its opposition to the plaintiffs' motion to treat the United States's motion to dismiss as a motion for summary judgment. (You can access that memorandum here.)

* Finally, just yesterday afternoon, the United States filed its reply brief in support of its motion to stay the proceedings on the plaintiffs' motion for summary judgment. (You can access that brief here.)

Thus far, District Judge G. Murray Snow (appointed by President George W. Bush) has not ruled on any of the competing motions.

Recent developments in Goudy-Bachman v. HHS

This is the case that is currently pending before Judge Christopher C. Conner in the District Court for the Middle District of Pennsylvania. You might recall that, back on January 24, the court denied the United States's motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, but it withheld judgment on the United States's 12(b)(6) motion to dismiss for failure to state a claim.

In the last six weeks, the following has occurred:

* First, on June 1, the district court scheduled oral argument in the case for July 21, in Harrisburg, Pennsylvania. (You can access the court's scheduling order here.)

* Second, the parties agreed to a joint stipulation under which they would combine the United States's motion to dismiss with cross-motions for summary judgment, and would augment the record with additional briefing on the motions. Here is the gist of the stipulation:

The parties have agreed that Defendants will supplement their pending12(b)(6) motion with a motion, in the alternative, for summary judgment, and Plaintiffs will file a crossmotion for summary judgment. These motions will incorporate the parties’ prior briefing, submitted in connection with Defendants’ 12(b)(6) motion, in support of the parties’ respective summary judgment motions. In addition, the parties have also agreed that, in order to create an appropriate summary judgment record for this Court and for purposes of appellate review, they will file supplementary briefing in connection with these motions. The parties have agreed to, and respectfully request the Court’s leave for, expanded page limits for this briefing as indicated
below.

(You can access the full text of the stipulation here.)

* Third, on June 21, pursuant to the terms of the joint stipulation, the United States submitted its memorandum in support of its pending motion to dismiss and, in the alternative, its motion for summary judgment. (You can access that brief here.)

* Fourth, last Wednesday (July 6), the plaintiffs filed their memorandum in support of their own motion for judgment and in opposition to the United States's motion for summary judgment. (You can access that brief here.)

Here is what is on the schedule for next week:

* On Monday (July 18), the United States will file its opposition to the plaintiffs' motion for summary judgment and its reply in support of its own motion.

* On Thursday (July 21), the court will hear oral argument on the various motions.

There is only one substantive question in the case: whether the individual mandate exceeds Congress's enumerated powers.

Update on U.S. Citizens Association v. Sebelius

This is the other case in the Sixth Circuit. The District Court for the Northern District of Ohio, a while back, rejected the challengers claims that the ACA violated (1) their fundamental rights protected as a matter of due process, (2) their constitutionally protected rights to expressive and intimate association, or (3) their constitutional right to privacy. The court then permitted the plaintiffs to pursue an appeal on those claims, while it held onto the claim that the minimum coverage provision exceeded Congress's enumerated powers. Two days after the Sixth Circuit's decision in Thomas More Law Center, the court dismissed that last claim as well.

The plaintiffs' appeal is now pending in the Sixth Circuit. Obviously, unless the Sixth Circuit votes to take the question en banc, the plaintiffs' claim concerning the minimum coverage requirement is now foreclosed by circuit precedent. But the three other claims remain live (however improbable).

You can find the plaintiff-appellants' brief here. And you can find the United States's brief here.

The plaintiff-appellants' reply brief is due Monday (July 18), which will complete the briefing in the case. At that point, the Sixth Circuit will presumably calendar the case for oral argument.

New schedule in Kinder v. Geithner

A few weeks ago, the Eighth Circuit revised the briefing schedule in Kinder v. Geithner. Here are the upcoming due dates:

* July 18: amicus curiae briefs in support of the plaintiff-appellants.

* August 11: brief for the appelles (the United States).

* August 18: amicus curiae briefs in support of the United State (if any).

* August 25: reply brief of plaintiff-appellants.

Yesterday's oral argument in Baldwin v. Sebelius

The Ninth Circuit heard oral argument yesterday in Pasadena in Baldwin v. Sebelius. The panel was comprised of Circuit Judges Fernandez, Rymer, and Tallman. (Judge Rymer participated remotely.) In general, the argument seemed to go pretty poorly for the plaintiffs (and reasonably well for the government).

Much of the argument focused on a matter specific to this particular case--namely, that the district court found that it lacked subject matter jurisdiction but nonetheless proceeded to deny the plaintiffs' request for a preliminary injunction. In their questioning, the judges seemed to suggest (rather strongly) that, once the district court concluded that it lacked jurisdiction, it had no authority to deny the injunction. As Judge Tallman commented, "If the court has no power to do anything in a case, there is nothing left once the court dismisses the case for lack of subject matter jurisdiction." As such (if I was following this correctly), the Ninth Circuit may well lack jurisdiction even to review the district court's supposed denial of a preliminary injunction. Perhaps, though, the court could construe the plaintiffs' appeal as an appeal of the district court's dismissal, and set the entire injunction matter to the side.

The United States (represented by Beth Brinkmann of the DOJ's Civil Division) argued that the Ninth Circuit had jurisdiction to affirm the denial of the injunction on the ground that the plaintiffs had not made sufficient factual allegations to demonstrate Article III standing. (Interestingly, the plaintiffs, despite being granted leave to amend their complaint last year by the district court, failed to add to their allegations to augment their claims to an injury in fact. They took the position yesterday that any such additional factual allegations were unnecessary and beside the point.)

Whatever the Ninth Circuit holds in this case, it seems clear that its ruling will be limited to one or more of the various jurisdictional questions. No judge asked a single question going to the constitutionality of the ACA itself.

You can access an audio file of the argument here.