Supreme Court grants extension to U.S. in filing response in Thomas More Law Center

A new entry has just appeared on the electronic docket at the Supreme Court for case number 11-117, Thomas More Law Center v. Obama:

Order extending time to file response to petition to and including September 28, 2011. 

This is big news, in the sense that it delays for another month the unveiling of the government's specific strategy. And by the end of September, we should have a better sense of what is happening next in Florida v. HHS.

Two timing orders in Kinder v. Geithner

The Eighth Circuit has issued two orders, yesterday and today, affecting the timing of Kinder v. Geithner.

First, yesterday, the court issued this order: "Appellants’ motion for extension of time to file the reply brief is granted. Appellants may have until August 30, 2011 to file the brief."

Second, the court this morning has issued this order concerning oral argument: "Appellants’ motion to expedite the oral argument is granted in part, and the clerk is directed to set the case for oral argument during the week of October 17 – 21, 2011 in St. Paul, Minnesota. Counsel will be notified of the exact date and time of the oral argument when the clerk publishes the October, 2011 calendar. The motion to expand the time for oral argument is denied as moot, as the clerk has screened the case for 30 minutes of oral argument per side."

On to the Twin Cities!

Amicus briefs supporting the U.S. in Kinder v. Geithner

The amicus curiae briefs supporting the United States have been filed in Kinder v. Geithner (and unlocked by the Eighth Circuit PACER docket minders). Eight were filed in total. Here they are, in alphabetical order:

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

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

* The brief of the Constitutional Law Professors (Jack Balkin, Gillian Metzger, and Trevor Morrison) is here.

* The brief of the Economic Scholars is here.

* The brief of Law Professors Barry Friedman, Metthew Adler, at al. is here.

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

* The brief of the Commonwealth of Massachusetts is here.

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

Some speculation about what is coming from the Fourth Circuit

Professor Kevin Walsh (University of Richmond School of Law) has written this post speculating about what may well be happening at the Fourth Circuit. It is all guesswork at this point, but Walsh's speculations are in line with what most people thought after oral argument: the panel seemed inclined to reach the merits in Liberty University and uphold the mandate, but dismiss the appeal in Virginia v. Sebelius on the ground that Virginia lacks standing. It stands to reason that Judge Motz would have the Liberty University opinion, and that Judge Davis is writing the majority opinion in Virginia v. Sebelius. 

The administration's options in responding to the TMLC cert petition

The Supreme Court's online docket sheet continues to indicate that the United States's Brief in Opposition to the plaintiff's petition for a writ of certiorari in Thomas More Law Center v. Obama is still due August 29, a week from Monday. At this point, the United States has a variety of options. To name a few (which may well not be exhaustive):

* It could seek an extension of time from the Court. According to Supreme Court Rule 30 (paragraph 4), such an application "may be presented in the form of a letter to the Clerk setting out specific reasons why an extension of time is justified. . . . The application may be acted on by the Clerk in the first instance, and any party aggrieved by the Clerk’s action may request that the application be submitted to a Justice or to the Court. The  Clerk  will  report  action under this paragraph to the Court as instructed." Unlike an application for an extension of time to file a cert petition, it need not be filed at least ten days before it is due. (This is surely due in part to the fact that parties are not actually obligated to file briefs in opposition to cert, though it would be highly unusual for the United States to decline to do so in a case of this significance.)

* It could file a brief agreeing with the petitioners that certiorari is warranted.

* It could file a brief agreeing in general terms that the question whether the minimum essential coverage provision is within Congress's enumerated powers is worthy of certiorari, but urge the Court to hold the petition until a petition is filed in Florida v. HHS. (The Court may well want to do this, and do it regardless of what the administration urges. But it seems unlikely the administration would ask for this, given that it prevailed on the Medicaid question, which is the only thing that Florida v. HHS offers beyond TMLC--at least from the administration's perspective.)

* It could do largely the same, but instead of urging the Court to hold the petition, it could merely advise the Court that Florida v. HHS raises an additional, related question (the constitutionality of the ACA's Medicaid amendments), and thus, if the Court is interested in that question, it could make sense to wait to see if the states will be filing a petition in that case. The government would likely argue in the same breath, however, that the constitutionality of such spending conditions is well settled, that there is no split, and thus that certiorari in Florida v. HHS on the Medicaid question is unwarranted. (This may be the most likely option.)

* It could file a brief stating that the Court should hold the petition on the grounds that it plans to file a petition for rehearing en banc in the Eleventh Circuit in Florida v. HHS, and if an en banc decision reverses the panel and upholds the mandate, there will no longer be a circuit split, negating the need for Supreme Court review. This, too, seems somewhat unlikely, only because the administration could well pay a significant political price for looking as if it is trying to run out the clock, manipulate the timing of Supreme Court review, and push the Court's decision past the 2012 election. (Then again, who knows? Perhaps the political price in such a strategy would not be so great, and the potential benefit--though perhaps a longshot--of avoiding Supreme Court review altogether is worth it.)

* It could file a brief arguing that certiorari is not presently warranted on the grounds that the issue warrants further percolation in the lower courts (i.e., let us what to see what the Fourth and D.C. Circuits decide). The chance of this seems remote.

Again, this is by no means exhaustive. The administration surely has other choices as well (though no obvious ones are occurring to me at the moment). Regardless, which step the administration takes here should reveal a fair amount about its strategy with respect to timing going forward. No doubt, there are several lawyers in DOJ and the White House thinking long and hard about exactly how to play this.

The Medicaid question

Now that the dust is starting to settle from Friday's decision in Florida v. HHS, I thought it might be worth examining a few aspects of the opinion in a bit greater depth, and with eye to what might be on the horizon. And I thought a good place to start would be the court's unanimous conclusion that the ACA's amendments to Medicaid are constitutional -- that they are not "unduly coercive," and thus do not amount to an unconstitutional "commandeering" of the states.

First, the court took pains to endorse the idea that the "coercion doctrine" (adverted to by the Supreme Court in Dole and Steward Machine) is a binding part of constitutional law. As the court remarked on p.63, "it is a mystery to us why so many of our sister circuits have" cast aside their "duty to apply it." This is a defensible, but not uncontroversial, conclusion. A close reading of Dole and Steward Machine reveals that there may not actually be any "coercion doctrine" as such. In both cases, the Court seems merely to assume the idea arguendo, and then hold that the challenged spending condition was constitutional regardless. Here, the Eleventh Circuit held that the doctrine does, in fact, limit Congress.

Second, the Court held that, although the doctrine exists, the conditions imposed by the ACA were not "unduly coercive." The court cited four specific reasons for its conclusion:

1. The Medicaid statute specifically and explicitly warns participating states (42 U.S.C. 1304) that Congress may "alter, amend, or repeal" any provision of the program.

2. The federal government will cover almost all of the costs of Medicaid coverage expansion (100% for the first few years, declining gradually to 90% in 2020 and beyond).

3. The states have four years' notice to decide whether they wish to comply with the new conditions or instead withdraw from Medicaid.

4. It is not a "foregone conclusion" that non-compliance with the ACA's Medicaid provisions will lead to a loss of all of a state's federal Medicaid assistance. See 42 U.S.C. 1396c.

"Taken together," the court concluded, "these factors convince us that the Medicaid-participating states have a real choice--not just in theory but in fact--to participate in the Act's Medicaid expansion." (P.67)

I generally agree with the court's legal conclusion that the ACA's Medicaid provisions are constitutional. But I have some quibbles with the first three factors cited by the court, and the fourth has some interesting implications. Addressing them briefly in turn:

1. It is true, the Medicaid statute contains an express warning to states that Congress might alter the terms of the program going forward. But this seems implicit in any federal spending program funded through annual appropriations. That is, it would seem odd if Congress's inclusion of such a boiler-plate provision affected the constitutionality of a law in any meaningful way. Congress modifies scores of spending programs that lack a similar provision, and I would think those revisions are just as constitutional.

2. True enough, Congress will cover most of the costs of coverage expansion. But the states' real coercion claim was that the total amount of all of their federal Medicaid assistance--all of which is at least jeopardized by the failure to adhere to the new ACA conditions--rendered nearly any significant alteration to Medicaid coercive. Understood this way, the federal assistance with Medicaid expansion is largely beside the point. It is the huge amount of funds that the states are already taking in (and have grown dependent on) that make the ACA's provisions coercive. (Indeed, Paul Clement stated at argument that, if anything, the additional funding provided in the ACA for coverage expansion made the coercion worse.) Thus, while true, this factor is largely beside the point, at least in answering the states' argument.

3. Again, the essence of the states' claim concerns the amount of funding at stake, and not the time it would take to make adjustments. There are some references in their papers filed in the district court about the ability to make an orderly transition to life without federal Medicaid assistance. But the briefs before the Eleventh Circuit were all about the money. And while time may solve many problems, it does not solve this one. Perhaps this point, more generally, suggests that so long as states have sufficient time to recalculate whether they want to participate in a federal spending program, there really cannot be coercion. That is fair enough. But if so, it also suggests that the amount of federal assistance at stake is immaterial.

The fourth factor seems right on point. If the coercion claim, at bottom, turns on the HUGE amount of federal assistance at stake, then the fact that CMS (or HHS or whomever) may not completely pull the plug on a state's FMAP dollars--that the Secretary has discretion to take much less drastic measures--is certainly relevant. But it implies two things: (1) the mere threat of complete Medicaid funding loss is not enough, in itself, to make the condition coercive, an important point in its own right; and (2) perhaps we have a different case in an as-applied challenge where CMS has, in fact, completely cut off a state from federal Medicaid assistance. (This possibility seems remote, not to mention counterproductive, but the logic of the Eleventh Circuit's decision leaves open such a possibility.)

In any event, given that this is the only lawsuit to raise the Medicaid "commandeering" question, and that all four judges to have faced the question have rejected the challenge on the merits, it seems a decent bet that that Supreme Court will simply deny certiorari if the states seek it. But there is one thing to keep in mind, as I mentioned Friday: the Court might prefer to have both constitutional questions before it, so it could render a decision that appears more "split" and less ideological. The severability question provides that opportunity as well, and perhaps that would be sufficient. But upholding Medicaid coverage expansion would potentially offer the Court's five more conservative justices even more political cover if, in the same ruling, they vote to invalidate the minimum coverage provision.

(Just to be clear, I am not suggesting that the justices necessarily consciously think in such blatantly political terms. My point is only that these dynamics might subtly influence how they view the case as a whole, and thus affect how they think subconsciously about the certiorari petitions.)

Ninth Circuit affirms in Baldwin v. Sebelius

Well, this is hardly the biggest news of the day. But the Ninth Circuit today affirmed the District Court's decision in Baldwin v. Sebelius, holding that the plaintiffs lacked standing. Here is the heart of the Judge Rymer's concise analysis for a unanimous panel:

Baldwin’s allegations fail to show injury in fact. Without expressing a view as to what would pass muster, we note that Baldwin does not aver that he currently lacks qualifying health insurance so that he would be non-compliant when the Act goes into effect. He also does not claim, like some other plaintiffs who have brought similar suits, that he must save money now to purchase insurance in 2014. See, e.g., Thomas More Law Ctr. v. Obama, ___ F.3d ___, 2011 WL 2556039, at *3 (6th Cir. June 29, 2011).  

Neither has Baldwin raised a justiciable preenforcement challenge to the Act, for he has not established a  “genuine threat of imminent prosecution” as we require. Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc) (internal quotation marks omitted). He articulates no concrete plan to be inadequately insured in the future. 

Baldwin’s submissions to the contrary are unpersuasive. He argues that he has suffered injury because he must take investigatory steps to determine if he is in compliance with the Act. But this is not a particularized injury that distinguishes Baldwin’s position from everyone else to whom the Act may apply. Baldwin also suggests that by alleging lack of consent to being compelled to buy insurance, he is implicitly stating that he doesn’t have insurance; however, that reads more into his “lack of consent” than the allegation will bear. At the end of the day, it is just another way of objecting to the provision and remains a generalized grievance. 

To the extent the Institute challenges the individual mandate, it does not have standing because the provision does not apply to employers. See Act, § 1501, 124 Stat. 119, 242-49. And to the extent the Institute challenges the employer shared responsibility provision, it does not have standing because it failed to allege it had over 50 employees so that it would be subject to the provision. See Act, § 1513, 124 Stat. 119, 253-56. The Institute’s claim of associational standing comes too late as it was raised in the reply brief, and regardless, it fails because there is no allegation that any of the Institute’s members have standing.  See  Fleck & Assocs., Inc. v. Phoenix, 471 F.3d 1100, 1105-06 (9th Cir. 2006). 

In short, neither Baldwin nor the Institute has shown injury in fact, or a genuine threat of prosecution, sufficient to give them standing or make their challenge justiciable. 

You can find the Ninth Circuit's full opinion here.

Timing and the Supreme Court

The question on everyone's mind, in light of today's decision, is the timing of the case getting to the Supreme Court. My very short take is that, at this point, it is hard to know. There is a very good chance the Court hears one of the cases this term, and hands down a decision in June 2012. But there remains at least a decent chance that the Court does not grant any of the cases until after January 2012, which would likely mean calendaring the case for the 2012 October Term, and a decision in the spring of 2013.

Here are a few things to consider:

* Given that there is now a split--and that a lower court has held a federal statute of this magnitude unconstitutional--the Supreme Court will definitely take the case, with the one possible exception being if the Eleventh Circuit takes Florida v. HHS en banc and reverses the panel, eliminating the split. This is possible, but probably quite unlikely. So the case is almost certainly headed to the Court.

* Given that the Eleventh Circuit unanimously upheld the ACA's Medicaid amendments, there seems a decent likelihood that the Court will not grant on that question. The one factor pointing the other way is that, if the Court granted on that question as well, it could have two discrete parts of the ACA to pass on, and upholding one while invalidating the other might seem less partisan or ideological (a la Grutter and Gratz or the Ten Commandments decisions).

* The administration might want to slow things down so that the decision comes after the 2012 election. For the administration would seem to have little to gain either way from the Court's decision. A decision upholding the ACA potentially energizes the Republican base, making clear that they need to elect officials who will repeal the ACA legislatively. But an invalidation would gut the one, principal domestic achievement of the Obama administration. Neither seems great politically five months in advance of the election.

* The administration could try to slow things down by (a) seeking en banc review in the Eleventh Circuit, (b) taking the full 90 days to file its certiorari petition, and (c) seeking extensions to file its brief in opposition in Thomas More Law Center and to file its petition for cert in this case.

* But the ball is not entirely in the administration's court. The Supreme Court could deny the administration any extensions, and it could grant certiorari in Thomas More Law Center, especially since there is now a split. Further, the states could also seek certiorari in Florida v. HHS, given that they lost on (1) the Medicaid issue, and (2) the severability question.

* It is hard to know what the justices think now about the timing of this. There are several reasons that the Court would prefer to have the Florida v. HHS, not the least of which is that it would be argued by Paul Clement. And perhaps the Court would be perfectly content to wait for its arrival, regardless of the timing, as there is really nothing compelling them to hear the case any sooner. But it is hard to know. Four justices might now think that the split now exists, they will have to decide it sooner or later, and now is as good a time as any.

All of this is to say that very much remains up in the air, and it is not all easy to determine the likely timing of getting to the Court. But after today, it is a very safe bet that the issue will get there eventually.

BREAKING NEWS: Eleventh Circuit invalidates minimum coverage provision

You can find the 305-page opinion here.

Here is a very short summary:

* The ACA's Medicaid expansion provisions are not unconstitutionally coercive, and thus are valid spending conditions.

* The minimum coverage provision exceeds Congress's authority to regulate interstate commerce.

* The minimum coverage provision is not a valid exercise of the tax power.

* The minimum coverage provision can be severed from the rest of the ACA, so only the individual mandate itself (and nothing else) is invalidated.

* Judge Marcus dissented on the constitutionality of the individual mandate, meaning that two judges "crossed party lines," so to speak: Marcus to uphold the mandate and Judge Hull to invalidate it.

This means, of course, that we are on our way to the Supreme Court -- and that the existence of this split makes it much more likely the Court will grant the pending petition in Thomas More Law Center.

I have personal commitments that we keep me away from my office most of the day, but I will try to have some analysis by late this evening.

U.S. brief in Kinder v. Geithner now available

You can access it here.

Plaintiffs file motion to expedite in Kinder v. Geithner

The plaintiff-appellants in Kinder v. Geithner, the case currently pending in the Eighth Circuit, have filed a motion to expedite oral argument and for extended argument time (30 minutes per side). Briefing will be complete in this case on August 25, when the plaintiff-appellants' reply brief is due. The motion indicates that the United States does not oppose the motion.

You might recall that the District Court dismissed this case on the ground that the plaintiffs lacked standing. The plaintiffs are obviously appealing that judgement, and asking the Eighth Circuit (after concluding that the matter is justiciable) to go ahead and reach the merits (and, in turn, hold that the minimum coverage provision exceeds Congress's enumerated powers).

The United States filed its brief yesterday. But, for whatever reason, it remains under PACER's lock and key.

You can find the plaintiff-appellant's motion to expedite here.

Four more essays at SCOTUSblog

The SCOTUSblog symposium on the constitutionality of the ACA continues:

* Elizabeth Wydra, Finding Support for the Constitutionality of the Affordable Care Act in Constitutional Text and History.

* Elizabeth Price Foley, Limited Government, Federalism, and the Affordable Care Act.

* Jonathan Adler, What Does the Mandate Regulate?

* Ilya Somin, Will the Supreme Court Give Congress an Unlimited Mandate for Mandates?

U.S. brief due today at the Eighth Circuit in Kinder v. Geithner

The docket sheet on PACER shows that the brief has been submitted. But apparently there is a review process before the brief is technically "filed," and the brief remains inaccessible until that review is complete. Once it is fully filed and available for download, I will post it here.

U.S. files motion for summary judgment in Coons v. Geithner

Yesterday afternoon, the United States filed its motion for summary judgment in Coons v. Geithner, the case pending in the District Court for the District of Arizona. The plaintiffs (which include United States Representatives Jeff Flake and Trent Franks) challenge the individual mandate as exceeding Congress's enumerated powers, as well as the constitutionality of the Independent Payment Advisory Board (IPAB).

In its original incarnation, this lawsuit challenged the IPAB on several different grounds. But as the United States's memorandum filed yesterday makes clear, there is only one IPAB-related claim left: that the ACA's IPAB provisions violate the non-delegation doctrine. The Supreme Court has not invalidated a federal statute on non-delegation grounds since 1936, and it has upheld some extraordinarily broad delegations of authority during that span of years. So this claim's chances of success seem pretty long.

You can find the United States's memorandum in support of its motion for summary judgment here. The plaintiffs' cross-motion for summary judgment is due Monday, August 29.

Good discussion of Resolution VI at the Volokh Conspiracy

Those who follow constitutional law scholarship closely, particularly as it pertains to the commerce power, will know that there has been a resurgence in interest over the past year in Resolution VI of the Virginia Plan -- the part of the Virginia proposal at the Constitutional Convention that would have given Congress the authority to legislate on all matters in which the states are "separately incompetent." It is hardly coincidental that this matter has become academically fashionable just as the ACA heads to the Supreme Court.

There is an interesting conversation ongoing over at the Volokh Conspiracy about the topic, which I highly recommend:

* Here is a post by Ilya Somin.

* Here is one from Neil Siegel.

* And here is one from Kurt Lash.

Two more SCOTUSblog essays

The symposium continues:

* Stephen Presser, Is the Patient Protection and Affordable Care Act Constitutional? What Should the Supreme Court Do?

* Cory Andrews, Reading the Constitutional Tea Leaves: How Will the Supremes Vote on the Affordable Care Act? 

U.S. BIO due August 29 in TMLC v. Obama

I just noticed that the Supreme Court has updated the electronic docket for Thomas More Law Center v. Obama (No. 11-117). It now states that the United States's brief in opposition to certiorari is due Monday, August 29. Of course, DOJ could always seek an extension. But as of now, that is the date.

After the United States files its BIO, the petitioners can then file a reply. There is no particular due date for that brief, but they will need to file it quickly. Once the BIO is filed, the case gets calendared for conference and the briefs are distributed to the justices' chambers within ten days. If there are no extensions, the petition will be considered at the justices' first conference of the new term, scheduled for the week of September 26.

Five more essays at SCOTUSblog

In the order they were posted:

* Laurence Tribe, The Limits of Intuition.

* Adam Winkler, Gotcha.

* Steven Schwinn, The ACA and the Tenth Amendment.

* Robert Schapiro, Following Judge Sutton's Rejection of the "Inactivity" Argument, the Supreme Court Can Take Its Time.

* Erwin Chemerinsky, The Health Care Law Is Constitutional.

Two more essays at SCOTUSblog

The latest entries:

* Mark Hall, A Sixth Sense: What Judge Sutton's Opinion Foretells.

* David B. Rivkin & Lee A. Casey, Why the Court Will Strike Down PPACA.

Briefing schedule set in Calvey v. Obama

Yesterday, District Judge David L. Russell (W.D. Okla.) issued an order establishing the briefing schedule in Calvey v. Obama for the parties' cross-motions for summary judgment. Here is that schedule:

* November 21: The United States's motion for summary judgment is due

* December 5: The plaintiffs' cross-motion for summary judgment and opposition is due

* December 22: The United States's opposition and reply is due

* December 30: The plaintiffs' reply is due

(You can access the order here.)

Here is a little background. In their second amended complaint (accessible here), the plaintiffs brought seven claims against the constitutionality of the ACA: (1) that the minimum coverage provision exceeds Congress's commerce power; (2) that the minimum coverage provision exceeds Congress's taxing power because it is an unapportioned "direct" tax; (3) that the ACA violates the Tenth Amendment; (4) that the ACA violates the Free Exercise by forcing the plaintiffs to fund abortions; (5) that the ACA's religious exemptions violate the equal protection component of the Due Process Clause of the Fifth Amendment; (6) that the minimum coverage provision deprives the plaintiffs of their substantive liberty protected by the Due Process Clause of the Fifth Amendment; and (7) that the ACA, by requiring plaintiffs to disclose certain personal medical information, violates the Fourth Amendment.

In an order issued April 26 (which you can access here), Judge Russell dismissed claims 4, 5, and 7 on the ground that none of the plaintiffs had standing. He dismissed claims 1, 2, 3, and 6 for lack of standing with respect to those plaintiffs that currently are insured. But he denied the United States's 12(b)(1) motion to dismiss with respect to claims 1, 2, 3, and 6 (all of which concern the individual mandate) with respect to those plaintiffs who are currently uninsured.

It is unclear whether this case will ever proceed to a decision on the merits. The Supreme Court may well have granted certiorari, and even decided the constitutionality of the mandate, before Judge Russell issues his decision on the cross-motions for summary judgment.