The District Court for the Middle District of Pennsylvania has declared the minimum essential coverage provision unconstitutional in Goudy-Bachman. More details to follow shortly.
UPDATE: You can access the opinion, written by District Judge Christopher Conner, here. Judge Conner specifically rejected the activity-inactivity distinction, but nonetheless concluded "that the extension of Commerce Clause power to the pre-transaction stage would eliminate 'judicially enforceable boundaries'" on the Commerce Clause. In other words, Congress cannot regulate the pre-transaction practice of not acquiring health coverage as a means to regulating the transaction of obtaining health care services.
Tuesday, September 13, 2011
Monday, September 12, 2011
Still September 28
A quick glance at the electronic docket available through the Supreme Court's we site shows that, as of now, the United States's response in Thomas More Law Center v. Obama (No. 11-117) is due September 28. Again, how the government responds to the petition will by quite interesting and potentially quite revealing. With the Fourth Circuit's decision of last Thursday, we now have an additional wrinkle: how will the government characterize this potential "vehicle problem," that the Anti-Injunction potentially deprives the Court of subject matter jurisdiction over any of the lawsuits challenging the individual mandate? The recent turnover in the Solicitor General's office also raises the specter of a possible change in position or strategy: will General Verrilli approach this case at all differently than General Katyal? We should know relatively soon.
U.S. reply brief due today in Coons v. Geithner
The United States's reply brief in support of its motion for summary judgment in Coons v. Geithner is due today in the United States District Court for the District of Arizona. This case is slightly more interesting than the average one still kicking around at the trial court level because it challenges the constitutionality of some of the ACA's provisions concerning the Independent Payment Advisory Board (or IPAB). That challenge, though, has been whittled down to the claim that the ACA effects an unconstitutionally broad delegation of legislative authority--a ground on which the Supreme Court has failed to invalidate a single federal law since 1935, and has invoked a grand total of twice in the nation's history. So the odds are pretty long.
The United States's brief is not yet posted to PACER. We will have a copy available here as soon as it appears on the electronic docket.
UPDATE: The United States's brief is now available here.
The United States's brief is not yet posted to PACER. We will have a copy available here as soon as it appears on the electronic docket.
UPDATE: The United States's brief is now available here.
Friday, September 9, 2011
The Anti-Injunction Act complications
The big news from yesterday's two decisions was not that Virginia lacks standing; that was a problem lurking in that case from the beginning, a nettlesome issue going all the way back to Judge Hudson's first opinion (in August 2010) rejecting the United States's motion to dismiss on 12(b)(1) grounds. Virginia would have stood on much stronger ground had it also alleged an injury in fact from the effect of the minimum essential coverage provision's necessarily pushing more Virginia residents onto the state's Medicaid rolls, and thus imposing a significant financial cost on the state. But the Commonwealth failed to do this, instead resting on the claim that it had standing based on the alleged "conflict" between its Virginia Health Care Freedom Act and the individual mandate. This was a weak argument from the beginning, and the Fourth Circuit's holding was entirely unsurprising.
What is surprising--perhaps not on the merits, but in relation to the attention the issue has received to date, from the courts and the parties--is the court's holding in Liberty University v. Geithner that federal courts lack any subject matter jurisdiction over a suit seeking to enjoin enforcement of the individual mandate because such jurisdiction is precluded by the Anti-Injunction Act. In this respect, there are some important points worth noting:
* This is a potential problem in every lawsuit currently challenging the individual mandate. That is, if the Fourth Circuit's analysis is correct, then the Supreme Court would lack jurisdiction to hear any private plaintiff's claim that the minimum coverage provision exceeds Congress's enumerated powers until after a taxpayer was assessed a penalty under ACA 1501, paid the penalty, and sued the federal government for a refund. The case thus would not reach the Supreme Court until somewhere in the neighborhood of 2015 or 2016.
* It is conceivable, though, that the AIA does bar suits brought by state governments. Of course, state governments have problems establishing standing under Article III, as discussed above. But if the states could overcome the Article III hurdle, it might be that they (unlike private plaintiffs) could avoid the AIA bar. (I remember Judge Hudson analyzing this issue in his August 2010 ruling denying the United States's motion to dismiss. Obviously, I need to look at it more carefully now.)
* One solution is that which Kevin Walsh has just proposed, which you can read here. In essence, Congress could pass a law repealing the AIA (since it is a statutory bar to jurisdiction) as applied to the ACA lawsuits. As Kevin documents, such a "retroactive" restoration of jurisdiction appears to be viable, even if there actually was not jurisdiction when the case was initially filed in the district court. (I agree with Kevin that Democrats and the President likely have an incentive to appear publicly to support this. But I am not sure there is quite the bipartisan consensus in fact to which Kevin refers. I can think of several reasons that most Democrats would much rather this case be decided by the Supreme Court in 2013 rather than June 2012.)
* What does the Justice Department do now? It has already essentially flip-flopped on this question--initially arguing that the AIA precluded subject matter jurisdiction, but then changing its tune, most notably in the letter brief it filed with the Fourth Circuit after oral argument. Does it now wish to flip back, given that the argument now seems to have gained greater credibility? Or is there too high a political cost for the administration in appearing to run from a fight on the merits? Or is there just too much to gain politically from delaying Supreme Court review (something the Court might well welcome) and pushing the decision past the 2012 election, such that it is worth taking whatever the hit will be from appearing so irresolute? I'm sure the DOJ lawyers working on this case were happy to have prevailed yesterday. But they simultaneously had a new strategic headache thrown into their laps.
There is much more to say, but I need to look into the various legal questions with more care. For now, it suffices to say that the Fourth Circuit's decision may well have complicated matters considerably, at least if Judge Motz's analysis proves difficult for the Supreme Court to refute.
UPDATE: One other point worth emphasizing: Probably the most important analytic move in Judge Motz's opinion was to hold that the meaning of "tax" for purposes of the Anti-Injunction Act and the meaning of "tax" for purposes of the General Welfare Clause (relevant to whether the individual mandate is a valid exercise of Congress's taxing power) are distinct. More specifically, the category of "taxes" (or exactions) to which the AIA applies is potentially much broader than that under the General Welfare Clause. Most (and perhaps all--I would need to go back and check carefully) of the other judges to have analyzed the AIA issue thus far have treated the issues as one and the same. (Recall Judge Vinson's opinion in October 2010, where he held that the individual mandate imposed a "penalty" rather than a "tax," and thus concluded from this both that the AIA was inapplicable and that the individual mandate could not be justified by the taxing power.) My suspicion is that Judge Motz's analysis on this point will be much harder to refute than the government's claim that the mandate is a valid exercise of the taxing power.
What is surprising--perhaps not on the merits, but in relation to the attention the issue has received to date, from the courts and the parties--is the court's holding in Liberty University v. Geithner that federal courts lack any subject matter jurisdiction over a suit seeking to enjoin enforcement of the individual mandate because such jurisdiction is precluded by the Anti-Injunction Act. In this respect, there are some important points worth noting:
* This is a potential problem in every lawsuit currently challenging the individual mandate. That is, if the Fourth Circuit's analysis is correct, then the Supreme Court would lack jurisdiction to hear any private plaintiff's claim that the minimum coverage provision exceeds Congress's enumerated powers until after a taxpayer was assessed a penalty under ACA 1501, paid the penalty, and sued the federal government for a refund. The case thus would not reach the Supreme Court until somewhere in the neighborhood of 2015 or 2016.
* It is conceivable, though, that the AIA does bar suits brought by state governments. Of course, state governments have problems establishing standing under Article III, as discussed above. But if the states could overcome the Article III hurdle, it might be that they (unlike private plaintiffs) could avoid the AIA bar. (I remember Judge Hudson analyzing this issue in his August 2010 ruling denying the United States's motion to dismiss. Obviously, I need to look at it more carefully now.)
* One solution is that which Kevin Walsh has just proposed, which you can read here. In essence, Congress could pass a law repealing the AIA (since it is a statutory bar to jurisdiction) as applied to the ACA lawsuits. As Kevin documents, such a "retroactive" restoration of jurisdiction appears to be viable, even if there actually was not jurisdiction when the case was initially filed in the district court. (I agree with Kevin that Democrats and the President likely have an incentive to appear publicly to support this. But I am not sure there is quite the bipartisan consensus in fact to which Kevin refers. I can think of several reasons that most Democrats would much rather this case be decided by the Supreme Court in 2013 rather than June 2012.)
* What does the Justice Department do now? It has already essentially flip-flopped on this question--initially arguing that the AIA precluded subject matter jurisdiction, but then changing its tune, most notably in the letter brief it filed with the Fourth Circuit after oral argument. Does it now wish to flip back, given that the argument now seems to have gained greater credibility? Or is there too high a political cost for the administration in appearing to run from a fight on the merits? Or is there just too much to gain politically from delaying Supreme Court review (something the Court might well welcome) and pushing the decision past the 2012 election, such that it is worth taking whatever the hit will be from appearing so irresolute? I'm sure the DOJ lawyers working on this case were happy to have prevailed yesterday. But they simultaneously had a new strategic headache thrown into their laps.
There is much more to say, but I need to look into the various legal questions with more care. For now, it suffices to say that the Fourth Circuit's decision may well have complicated matters considerably, at least if Judge Motz's analysis proves difficult for the Supreme Court to refute.
UPDATE: One other point worth emphasizing: Probably the most important analytic move in Judge Motz's opinion was to hold that the meaning of "tax" for purposes of the Anti-Injunction Act and the meaning of "tax" for purposes of the General Welfare Clause (relevant to whether the individual mandate is a valid exercise of Congress's taxing power) are distinct. More specifically, the category of "taxes" (or exactions) to which the AIA applies is potentially much broader than that under the General Welfare Clause. Most (and perhaps all--I would need to go back and check carefully) of the other judges to have analyzed the AIA issue thus far have treated the issues as one and the same. (Recall Judge Vinson's opinion in October 2010, where he held that the individual mandate imposed a "penalty" rather than a "tax," and thus concluded from this both that the AIA was inapplicable and that the individual mandate could not be justified by the taxing power.) My suspicion is that Judge Motz's analysis on this point will be much harder to refute than the government's claim that the mandate is a valid exercise of the taxing power.
Thursday, September 8, 2011
A very short summary of Liberty University v. Geithner
The gist of the court's holding is that "the term 'tax' in the [Anti-Injunction Act] reaches any exaction imposed by the Code and assessed by the tax collector pursuant to his general revenue authority." That definition squarely includes the penalty imposed by the minimum coverage provision, even if it is a "penalty," and even if it is not a tax for purposes of the General Welfare Clause. As a result, the AIA deprives the court of any jurisdiction to enjoin enforcement in a pre-enforcement challenge: the AIA deprives the court of subject matter jurisdiction.
Perhaps the biggest impact from this decision is that is adds substantial credence to the AIA argument, and thus will complicate matters for the Supreme Court once one of the cases gets there.
Perhaps the biggest impact from this decision is that is adds substantial credence to the AIA argument, and thus will complicate matters for the Supreme Court once one of the cases gets there.
A quick reaction to Virginia v. Sebelius
I just finished reading the opinion in Virginia v. Sebelius, and here are some quick thoughts:
* It is a straightforward application of established Article III doctrine. Virginia is not asserting parens patriae standing, so the only question was whether the Commonwealth had a "sovereign injury." Further, Virginia did not claim injury on the basis of the individual mandate pushing more of its residents onto Medicaid, and thus costing the state more under that program. Rather, its only claim to injury was the alleged conflict between its Virginia Health Care Freedom Act and the ACA.
* Virginia's law was purely declaratory, and thus cannot be sufficient to establish the necessary injury in fact under Article III. Virginia has no authority to enforce its VHCFA against the federal government. Thus, there is no real "conflict" between federal and Virginia law that prevents Virginia from enforcing its own legal code. As a result, there is no case or controversy.
* This makes Virginia v. Sebelius a much less attractive (to use Justice O'Connor's phrasing) a vehicle for the Supreme Court to adjudicate the constitutionality of the individual mandate. First, the merits question, though pressed, will not have been passed on below. And the Court typically takes cases only when that has occurred (though this is not always the case). Second, and more important, this merely highlights the lurking standing issue that has been there all along, and which could well preclude the Court from reaching the merits. From the justices' perspective, why waste time on a case that might not be justiciable. If only to be risk averse, it is better for the Court to take a case in which standing is less controversial, such as Thomas More Law Center or Florida v. HHS.
* Some vindication for Kevin Walsh, who has been arguing from the beginning that Virginia lacked standing in this litigation.
* It is a straightforward application of established Article III doctrine. Virginia is not asserting parens patriae standing, so the only question was whether the Commonwealth had a "sovereign injury." Further, Virginia did not claim injury on the basis of the individual mandate pushing more of its residents onto Medicaid, and thus costing the state more under that program. Rather, its only claim to injury was the alleged conflict between its Virginia Health Care Freedom Act and the ACA.
* Virginia's law was purely declaratory, and thus cannot be sufficient to establish the necessary injury in fact under Article III. Virginia has no authority to enforce its VHCFA against the federal government. Thus, there is no real "conflict" between federal and Virginia law that prevents Virginia from enforcing its own legal code. As a result, there is no case or controversy.
* This makes Virginia v. Sebelius a much less attractive (to use Justice O'Connor's phrasing) a vehicle for the Supreme Court to adjudicate the constitutionality of the individual mandate. First, the merits question, though pressed, will not have been passed on below. And the Court typically takes cases only when that has occurred (though this is not always the case). Second, and more important, this merely highlights the lurking standing issue that has been there all along, and which could well preclude the Court from reaching the merits. From the justices' perspective, why waste time on a case that might not be justiciable. If only to be risk averse, it is better for the Court to take a case in which standing is less controversial, such as Thomas More Law Center or Florida v. HHS.
* Some vindication for Kevin Walsh, who has been arguing from the beginning that Virginia lacked standing in this litigation.
Fourth Circuit dismisses both challenges on justiciability grounds
The opinion in Virginia v. Sebelius is here, holding that Virginia lacks standing.
The opinion in Liberty University v. Geithner is here, holding that the Anti-Injunction Act deprives the court of jurisdiction.
I have other items to attend to, and will not get a chance to look at these for a while. My quick take is that the Virginia holding was completely expected; that the court did not reach the merits in Liberty University, though, is a bit surprising.
The opinion in Liberty University v. Geithner is here, holding that the Anti-Injunction Act deprives the court of jurisdiction.
I have other items to attend to, and will not get a chance to look at these for a while. My quick take is that the Virginia holding was completely expected; that the court did not reach the merits in Liberty University, though, is a bit surprising.
Wednesday, September 7, 2011
Appellants file reply brief in Kinder v. Geithner
On September 1, the plaintiff-appellants filed their reply brief in Kinder v. Geithner, the case currently pending before the United States Court of Appeals for the Eighth Circuit. The case is scheduled to be argued before the Court of Appeals during the week of October 21.
You can access the reply brief here.
You can access the reply brief here.
Case management conference set in Bryant v. Holder
The District Court for the Southern District of Mississippi has made the following entry on the docket sheet for Bryant v. Holder (No. 2:10-cv-76):
Case Management Conference set for 9/28/2011, 1:30 PM, before Magistrate Judge Michael T. ParkerThis is the case in which the District Court (Judge Starrett) recently denied in part and granted in part the United States's motion to dismiss, holding that the plaintiffs had standing to raise most of their claims. Presumably the case management conference is intended to settle a briefing schedule for the parties' cross-motions for summary judgment.
Friday, September 2, 2011
Some new additions to the library
I am trying--time willing--to keep the bibliography of academic articles about the constitutionality of the ACA (link to the right) updated as best I can. In that vein, wanted to mention four articles I have added this week:
* Lawrence Jacobs and Suzanne Mettler, Structural Framing: Health Care reform and changing American Politics.
* Elizabeth Weeks Leonard, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform.
* Ruth Mason, Federalism and the Taxing Power.
* Abigail Moncrieff, The Freedom of Health and Safeguarding the Safeguards: The ACA Litigation and the Extension of Structural Protection to Non-Fundamental Liberties.
Enjoy!
* Lawrence Jacobs and Suzanne Mettler, Structural Framing: Health Care reform and changing American Politics.
* Elizabeth Weeks Leonard, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform.
* Ruth Mason, Federalism and the Taxing Power.
* Abigail Moncrieff, The Freedom of Health and Safeguarding the Safeguards: The ACA Litigation and the Extension of Structural Protection to Non-Fundamental Liberties.
Enjoy!
Four amicus certiorari briefs filed in Thomas More Law Center v. Obama
The Supreme Court's electronic docket now indicates that four amicus curiae briefs have been filed in Thomas More Law Center v. Obama (No. 11-117), though that number is likely to grow. Here are the parties that have filed thus far:
* The HR Policy Association (brief available here).
* The Pacific Legal Foundation (brief available here).
* The Mountain States Legal Foundation (brief not yet available).
* Mortimer Caplin and Sheldon Cohen (brief not yet available).
Interestingly, the Pacific Legal Foundation argues that the Court should grant certiorari but that it should wait until Florida v. HHS also arrives at the Court and consolidate the two cases.
Here is s summary of the HR Policy Association's argument, clipped straight from page 3:
UPDATE: With many thanks to Perry Pendley of the Mountain States Legal Foundation, their amicus cert brief is now available here. The following paragraph summarizes their argument (quoting from p.5):
* The HR Policy Association (brief available here).
* The Pacific Legal Foundation (brief available here).
* The Mountain States Legal Foundation (brief not yet available).
* Mortimer Caplin and Sheldon Cohen (brief not yet available).
Interestingly, the Pacific Legal Foundation argues that the Court should grant certiorari but that it should wait until Florida v. HHS also arrives at the Court and consolidate the two cases.
Here is s summary of the HR Policy Association's argument, clipped straight from page 3:
Conflicting decisions by the federal judiciary regarding the constitutionality of the PPACA—particularly with respect to the individual mandate provision—has created significant legal uncertainty regarding the future of health care reform in Amer-ica. Indeed, these conflicts have left individuals, states, and particularly employers, which are devot-ing substantial time and resources to the implemen-tation of the numerous requirements under the Act, mired in uncertainty. Prompt resolution of the Act’s constitutionality by this Court, one way or another, will provide greater certainty and predictability in the health care reform process, which is needed for employers to move forward. Therefore, the Court should grant the Petition for a Writ of Certiorari.
UPDATE: With many thanks to Perry Pendley of the Mountain States Legal Foundation, their amicus cert brief is now available here. The following paragraph summarizes their argument (quoting from p.5):
The Sixth Circuit’s decision is in direct conflict with decisions of this Court that reinforce the doctrine of enumerated powers. More importantly, it is in direct conflict with the clear intent of the Founders, as expressed in the Declaration of Independence and the Articles of Confederation, and with the text of Article I and the Ninth and Tenth Amendments. Furthermore, the Sixth Circuit’s decision conflicts with an Eleventh Circuit decision that struck down the Individual Mandate because the government’s arguments in support of the Mandate had no limiting principles and, therefore, undermined the doctrine of enumerated powers. As a result, the Petition should be granted.
Thursday, September 1, 2011
District court issues mixed ruling in Bryant v. Holder
On Tuesday, the District Court for the Southern District of Mississippi issued a Memorandum Opinion and Order granting in part and denying in part the United States's motion to dismiss the case on jurisdictional grounds. The crux of the court's holding was as follows:
* Some of the plaintiffs had alleged sufficient facts to demonstrate a present injury from the need to purchase health insurance beginning in 2014, and thus they had standing to claim that the minimum coverage provision exceeded Congress's enumerated powers.
* Plaintiff Bryant had failed to allege sufficient facts showing that he would be an employee of Mississippi, and thus "he did not show an imminent, concrete harm arising from the minimum essential coverage provision’s effect on the health insurance plans offered by the state of Mississippi to its employees," and lacked standing to press this claim.
* The plaintiffs have standing to raise their claim that the minimum coverage provision, by requiring them to disclose health-related information to private insurers, violates their constitutional right to medical privacy.
* There is no need for further jurisdictional discovery.
The parties are now to meet with Judge Starrett to establish a briefing schedule for their respective motions for summary judgment.
You can access Judge Starrett's opinion here.
* Some of the plaintiffs had alleged sufficient facts to demonstrate a present injury from the need to purchase health insurance beginning in 2014, and thus they had standing to claim that the minimum coverage provision exceeded Congress's enumerated powers.
* Plaintiff Bryant had failed to allege sufficient facts showing that he would be an employee of Mississippi, and thus "he did not show an imminent, concrete harm arising from the minimum essential coverage provision’s effect on the health insurance plans offered by the state of Mississippi to its employees," and lacked standing to press this claim.
* The plaintiffs have standing to raise their claim that the minimum coverage provision, by requiring them to disclose health-related information to private insurers, violates their constitutional right to medical privacy.
* There is no need for further jurisdictional discovery.
The parties are now to meet with Judge Starrett to establish a briefing schedule for their respective motions for summary judgment.
You can access Judge Starrett's opinion here.
Sissel stayed
The United States District Court for the District of Columbia has stayed Sissel v. HHS. Specifically, the court has issued this minute order on the docket sheet:
MINUTE ORDER (paperless) This case is hereby stayed pending the D.C. Circuit's decision in Mead v. Holder, USCA No. 11-5047. Within thirty days of the D.C. Circuit's ruling, the parties shall submit a joint status report addressing how this case should proceed. Signed by Judge Beryl A. Howell on August 9, 2011.The court actually means Seven-Sky v. Holder, as the plaintiff Mead has officially withdrawn from the litigation. But the point is the same. The district court will simply wait to see what happens in Seven-Sky, which will be argued before the D.C. Circuit on September 23, before acting on the United States's motion to dismiss. The Seven-Sky decision will address the same issue and become binding precedent. So there is little point to the district court deciding this before then.
Dueling supplemental briefs in Goudy-Bachman
This is the case currently pending in the United States District Court for the Middle District of Pennsylvania. The plaintiffs and the United States have filed cross-motions for summary judgment, and the court has already hear argument on those motions
On August 19, the plaintiffs filed a supplemental brief, discussing in particular the Eleventh Circuit's decision in Florida v. HHS. You can find that brief here.
On Tuesday, the United States responded to the plaintiffs' supplemental brief. As astute reader Mark Regan points out, this is the DOJ's first extended, public response to the Eleventh Circuit decision. You an find the United States's brief here.
On August 19, the plaintiffs filed a supplemental brief, discussing in particular the Eleventh Circuit's decision in Florida v. HHS. You can find that brief here.
On Tuesday, the United States responded to the plaintiffs' supplemental brief. As astute reader Mark Regan points out, this is the DOJ's first extended, public response to the Eleventh Circuit decision. You an find the United States's brief here.
Washington Supreme Court refuses to order Washington AG to withdraw from Florida v. HHS
The always-helpful Howard Bashman has pointed me to an interesting ACA-related decision handed own today by the Washington Supreme Court, City of Seattle v. McKenna. In the lawsuit, Seattle sought an order that Washington Attorney General Rob McKenna withdraw the state as a plaintiff in Florida v. HHS (and presumably as an amicus in some of the other cases).
You may recall that Washington is one of the states in which the Governor and the Attorney General have taken opposing positions on the constitutionality of the ACA--leading to the odd situation in which they have made conflicting arguments to a federal court in the same case. Governor Chris Gregoire has filed amicus briefs in Florida v. HHS urging the court to uphold the ACA in its entirety. Washington Attorney General Rob McKenna has represented Washington as one of 26 state plaintiffs in Florida v. HHS.
Here, the City of Seattle specifically sought a writ of mandamus ordering General McKenna to withdraw the state from Florida v. HHS. The Washington Supreme Court today declined to issue the writ. Here is a critical passage summarizing the court's holding:
You can find Howard Bashman's coverage at How Appealing here. You can find the Washington Supreme Court's opinion here.
You may recall that Washington is one of the states in which the Governor and the Attorney General have taken opposing positions on the constitutionality of the ACA--leading to the odd situation in which they have made conflicting arguments to a federal court in the same case. Governor Chris Gregoire has filed amicus briefs in Florida v. HHS urging the court to uphold the ACA in its entirety. Washington Attorney General Rob McKenna has represented Washington as one of 26 state plaintiffs in Florida v. HHS.
Here, the City of Seattle specifically sought a writ of mandamus ordering General McKenna to withdraw the state from Florida v. HHS. The Washington Supreme Court today declined to issue the writ. Here is a critical passage summarizing the court's holding:
We hold that a writ of mandamus is not available because the attorney general has no clear duty to withdraw the State of Washington from the federal litigation. Statutory authority vests the attorney general with the discretionary authority to participate in the litigation at issue. We also determine, however, that this result is not constitutionally compelled; the Washington Constitution does not vest the attorney general with any common law authority. It is for the people of the state of Washington, through their elected representatives or through the initiative process, to define the role of the attorney general. The power of the attorney general is “created and limited, not by the common law, but by the law enacted by the people, either in their constitutional declarations or through legislative declarations in pursuance of constitutional provisions.” State ex rel. Attorney Gen. v. Seattle Gas & Elec. Co., 28 Wash. 488, 500, 68 P. 946, 70 P. 114 (1902).
You can find Howard Bashman's coverage at How Appealing here. You can find the Washington Supreme Court's opinion here.
Wednesday, August 31, 2011
A calendar for the coming months
We have hit a bit of a lull in the ACA litigation storm -- but rest assured, the winds will start blowing again soon. Here is a brief overview of the significant dates for the next five months:
September 23: oral argument at the United States Court of Appeals for the D.C. Circuit in Seven-Sky v. Holder. This case lags behind Thomas More Law Center (CA6), Florida v. HHS (CA11), and the two Fourth Circuit cases, so it is unclear how much it will matter. But it is significant in the sense that the panel comprises an all-star cast of judges: Silberman, Edwards, and Kavanaugh. So even if this case never reaches the Supreme Court, the panel's opinion (or, more likely, opinions) is apt to be influential in the justices' deliberations.
September 28: the present due date for the United States's response to the petition for certiorari in Thomas More Law Center v. Obama. As we have discussed here previously, the federal government has several options as to how it wants to respond, from conceding that certiorari is warranted to urging denial to asking the Court to hold the petition for the time being. Which option it chooses will largely reveal the administration's strategy in terms of timing (though the Court, obviously, will have the ultimate say).
November 10: deadline for filing a petition for certiorari in Florida v. HHS. Both sides have until this date to seek the Supreme Court's review. This date could change, though, if either side seeks en banc review in the Eleventh Circuit or seeks an extension from the Supreme Court.
January 15 (roughly): the typical cut-off for cert grants to be argued during the present Term. This date is flexible, and the Court can always expedite the briefing schedule. But generally those petitions granted up until this date are argued during the current Term (argued in April, decided by June), while those granted after this date are pushed off until the next Term (here, it would mean argued in the fall of 2012 and decided in 2013). Thus, if the Court has not yet granted certiorari in one of the cases by this date, it will become increasingly likely that the Court's decision will come after the 2012 election.
September 23: oral argument at the United States Court of Appeals for the D.C. Circuit in Seven-Sky v. Holder. This case lags behind Thomas More Law Center (CA6), Florida v. HHS (CA11), and the two Fourth Circuit cases, so it is unclear how much it will matter. But it is significant in the sense that the panel comprises an all-star cast of judges: Silberman, Edwards, and Kavanaugh. So even if this case never reaches the Supreme Court, the panel's opinion (or, more likely, opinions) is apt to be influential in the justices' deliberations.
September 28: the present due date for the United States's response to the petition for certiorari in Thomas More Law Center v. Obama. As we have discussed here previously, the federal government has several options as to how it wants to respond, from conceding that certiorari is warranted to urging denial to asking the Court to hold the petition for the time being. Which option it chooses will largely reveal the administration's strategy in terms of timing (though the Court, obviously, will have the ultimate say).
November 10: deadline for filing a petition for certiorari in Florida v. HHS. Both sides have until this date to seek the Supreme Court's review. This date could change, though, if either side seeks en banc review in the Eleventh Circuit or seeks an extension from the Supreme Court.
January 15 (roughly): the typical cut-off for cert grants to be argued during the present Term. This date is flexible, and the Court can always expedite the briefing schedule. But generally those petitions granted up until this date are argued during the current Term (argued in April, decided by June), while those granted after this date are pushed off until the next Term (here, it would mean argued in the fall of 2012 and decided in 2013). Thus, if the Court has not yet granted certiorari in one of the cases by this date, it will become increasingly likely that the Court's decision will come after the 2012 election.
Plaintiffs file reply in Coons v. Geithner
On Tuesday afternoon, the plaintiffs in Coons v. Geithner filed their "Reply in Further Support of their Motion for Summary Judgment and in Response in Opposition to Defendants' [Motion] for Summary Judgment." This is the case pending in the District Court for the District of Arizona (District Judge G. Murray Snow) challenging both the minimum essential coverage provision and the breadth of the ACA's legislative delegation to the Independent Payment Advisory Board (IPAB). The United States' reply brief is due September 12, at which point the summary judgment briefing in case will be complete.
You can find the plaintiffs' reply brief here.
You can find the plaintiffs' reply brief here.
Appellants file reply brief in Kinder v. Geithner
The plaintiff-appellants in Kinder v. Geithner (who lost below on the ground that they lacked standing) filed their reply brief yesterday at the Eighth Circuit. Unfortunately, it remains in a "locked" status on PACER. As soon as it is available, I will post it here.
Friday, August 26, 2011
Some family news
For many reasons, this is probably not an appropriate forum for me to discuss my family. But it is hard for me not to take some pride in an announcement today from the Department of Justice--one that actually relates to the litigation concerning the ACA's constitutionality.
Specifically, my wife's brother, Sri Srinivasan, has just been named the Political Deputy Solicitor General. He has served in the Office of the Solicitor General before, as an assistant SG for four years in the 2000s. He comes most recently from the Washington, D.C., office of O'Melveny & Meyers, where he has worked in the firm's appellate practice. Sri has argued seventeen cases at the Court. (SCOTUSblog has a brief story here, and the Blog of the Legal Times here.)
Hence, within a few weeks, Sri will be among the top DOJ lawyers plotting the government's strategy for defending the constitutionality of the ACA--a point I should disclose regardless.
Specifically, my wife's brother, Sri Srinivasan, has just been named the Political Deputy Solicitor General. He has served in the Office of the Solicitor General before, as an assistant SG for four years in the 2000s. He comes most recently from the Washington, D.C., office of O'Melveny & Meyers, where he has worked in the firm's appellate practice. Sri has argued seventeen cases at the Court. (SCOTUSblog has a brief story here, and the Blog of the Legal Times here.)
Hence, within a few weeks, Sri will be among the top DOJ lawyers plotting the government's strategy for defending the constitutionality of the ACA--a point I should disclose regardless.
Tuesday, August 23, 2011
An small update on timing and the Supreme Court
Just a quick thought on what the Court's granting of an extension in Thomas More Law Center v. Obama means for the potential timing of the Court's ultimate consideration.
The general practice at the Court is to circulate the petition and the brief in opposition roughly ten days after the response is filed. Here, that now means no earlier than October 8. After it is circulated, there is then a week for a clerk to write a pool memo, and then another week before it is considered at a conference. Given the Court's published 2011 October Term calendar (available here), that means the earliest conference at which the Justices are apt to consider the petition is now that scheduled for Friday, October 28 (the order list from which would be released on the following Monday, October 31).
In a case such as this--and given the existence of the other cases--it might be expected that the Court would re-list the TMLC petition at least once, and perhaps a few times, to see what else might unfold (in Florida v. HHS or any of the other cases). Indeed, the Court could wait until as late as mid-January and still have sufficient time to grant a cert petition, hear argument (in April), and decide the case on the merits by June 2012.
But it now appears that the earliest date the Court might grant review in a case challenging the constitutionality of the ACA is October 31.
The general practice at the Court is to circulate the petition and the brief in opposition roughly ten days after the response is filed. Here, that now means no earlier than October 8. After it is circulated, there is then a week for a clerk to write a pool memo, and then another week before it is considered at a conference. Given the Court's published 2011 October Term calendar (available here), that means the earliest conference at which the Justices are apt to consider the petition is now that scheduled for Friday, October 28 (the order list from which would be released on the following Monday, October 31).
In a case such as this--and given the existence of the other cases--it might be expected that the Court would re-list the TMLC petition at least once, and perhaps a few times, to see what else might unfold (in Florida v. HHS or any of the other cases). Indeed, the Court could wait until as late as mid-January and still have sufficient time to grant a cert petition, hear argument (in April), and decide the case on the merits by June 2012.
But it now appears that the earliest date the Court might grant review in a case challenging the constitutionality of the ACA is October 31.
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