So the avalanche is now beginning . . . .
The Association of American Physicians and Surgeons, as well as a handful of doctors, have filed a cert stage amicus curiae brief in Florida v. Sebelius (No. 11-400). The brief makes three arguments: (1) the severability analysis employed by the Eleventh Circuit operates as a judicial line-item veto, and thus violated Article I's requirement of bicameralism; (2) the minimum essential coverage provision does not involve "commerce" due to the absence of the involvement of two parties; and (3) the minimum essential coverage provision violated Article I's requirement of presentment because it was simultaneously enacted and amended.
You can access the brief here.
Friday, October 28, 2011
Family Research Council files amicus brief
The Family Research Council and thirty Members of the House of Representatives have jointly filed a cert stage amicus curiae brief applicable to both NFIB v. Sebelius (No. 11-393) and Florida v. HHS (No. 11-400). The brief is authored by Nelson Lund, constitutional law professor at George Mason University. The brief contends that the Eleventh Circuit misapplied the Court's severability doctrine, and that if the Court concludes that any aspect of the ACA is unconstitutional, it should also resolve the severability questions.
You can access the brief here.
You can access the brief here.
California Endowment files amicus brief
The California Endowment--"a private foundation committed to the expansion of affordable, quality health care for all Californians, with an emphasis on providing health care to underserved and low income communities"--has filed a cert-stage amicus curiae brief in HHS v. Florida (No. 11-398). The brief is authored by constitutional law professor (and former Stanford Law School dean) Kathleen Sullivan. In essence, it argues that the minimum coverage provision is a proper exercise of Congress's commerce power because (a) an individual's uninsured status provides a "tangible link" to commerce, and (b) the provision of uncompensated care substantially affects interstate commerce. The brief also argues that the individual mandate is an essential aspect of a broader regulatory scheme, which scheme plainly regulates interstate commerce.
You can access the brief here.
You can access the brief here.
Thursday, October 27, 2011
Thomas More Law Center v. Obama (No. 11-117)
Supreme Court docket sheet:
Available here
Decisions below:
Thomas More Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010)
Thomas More Law Center v. Obama, 651 F.3d 529 (CA6 2011)
Certiorari stage documents:
Petition for a writ of certiorari
United States's brief in response
Reply brief of Petitioners
Brief of the HR Policy Association as amicus curiae
Brief of the Mountain States Legal Foundation as amicus curiae
Brief of the Pacific Legal Foundation as amicus curiae
Brief of Mortimer Caplin and Sheldon Cohen as amicus curiae
Available here
Decisions below:
Thomas More Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010)
Thomas More Law Center v. Obama, 651 F.3d 529 (CA6 2011)
Certiorari stage documents:
Petition for a writ of certiorari
United States's brief in response
Reply brief of Petitioners
Brief of the HR Policy Association as amicus curiae
Brief of the Mountain States Legal Foundation as amicus curiae
Brief of the Pacific Legal Foundation as amicus curiae
Brief of Mortimer Caplin and Sheldon Cohen as amicus curiae
Liberty University v. Geithner (No. 11-438)
Supreme Court docket sheet:
Available here.
Decisions below:
Liberty University v. Geithner, 753 F. Supp. 2d 611 (W.D. Va. 2010).
Liberty University v. Geithner, 2011 WL 3962915 (CA4 2011).
Certiorari stage documents:
Petition for a writ of certiorari.
United States's brief in response.
Available here.
Decisions below:
Liberty University v. Geithner, 753 F. Supp. 2d 611 (W.D. Va. 2010).
Liberty University v. Geithner, 2011 WL 3962915 (CA4 2011).
Certiorari stage documents:
Petition for a writ of certiorari.
United States's brief in response.
Virginia v. Sebelius (No. 11-420)
Supreme Court docket sheet:
Available here
Decisions below:
Virginia v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010) (on motion to dismiss)
Virginia v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010) (on motions for summary judgment)
Virginia v. Sebelius, 656 F.3d 253 (CA4 2011)
Certiorari stage documents:
Petition for a writ of certiorari
United States's brief in response
Brief of Pacific Legal Foundation et al. as amici curiae
Brief of Delegate Bob Marshall et al. as amici curiae
Available here
Decisions below:
Virginia v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010) (on motion to dismiss)
Virginia v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010) (on motions for summary judgment)
Virginia v. Sebelius, 656 F.3d 253 (CA4 2011)
Certiorari stage documents:
Petition for a writ of certiorari
United States's brief in response
Brief of Pacific Legal Foundation et al. as amici curiae
Brief of Delegate Bob Marshall et al. as amici curiae
Florida v. HHS (No. 11-400)
Supreme Court docket sheet:
Available here.
Decisions below:
Florida v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (on motion to dismiss).
Florida v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (on motions for summary judgment).
Florida v. HHS, 648 F.3d 1235 (CA11 2011)
Certiorari stage documents:
Petition for a writ of certiorari
United States's brief in response (also response in No. 11-393)
Waiver of right to respond by NFIB et al.
Reply brief of State Petitioners
Brief of Chamber of Commerce as amicus curiae
Brief of America's Health Insurance Plans as amicus curiae
Brief of American Center for Law and Justice et al. as amici curiae
Brief of Family Research Council et al. as amici curiae
Brief of Association of American Physicians and Surgeon et al. as amici curiae
Brief of Center for Constitutional Jurisprudence et al. as amici curiae
Brief of Catholic Sisters
Brief of Michigan Legal Services et al.
Merits stage documents (severability):
* Briefs for the parties
Brief of State Petitioners on Severability
Brief of Private Petitioners on Severability
Brief of United States (Severability)
Reply Brief for Private Petitioners on Severability
Reply Brief for State Petitioners on Severability
Solicitor General's Reply Brief for Respondents (Severability)
* Brief of Court-Appointed Amicus
* Amicus curiae briefs in support of petitioners
Available here.
Decisions below:
Florida v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (on motion to dismiss).
Florida v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (on motions for summary judgment).
Florida v. HHS, 648 F.3d 1235 (CA11 2011)
Certiorari stage documents:
Petition for a writ of certiorari
United States's brief in response (also response in No. 11-393)
Waiver of right to respond by NFIB et al.
Reply brief of State Petitioners
Brief of Chamber of Commerce as amicus curiae
Brief of America's Health Insurance Plans as amicus curiae
Brief of American Center for Law and Justice et al. as amici curiae
Brief of Family Research Council et al. as amici curiae
Brief of Association of American Physicians and Surgeon et al. as amici curiae
Brief of Center for Constitutional Jurisprudence et al. as amici curiae
Merits stage documents (Medicaid expansion):
* Briefs for parties
* Amicus Curiae briefs in support of state petitioners
* Amicus Curiae briefs in support of United States
Brief of David Riemer et al.Brief of Catholic Sisters
Brief of Michigan Legal Services et al.
Merits stage documents (severability):
* Briefs for the parties
Brief of State Petitioners on Severability
Brief of Private Petitioners on Severability
Brief of United States (Severability)
Reply Brief for Private Petitioners on Severability
Reply Brief for State Petitioners on Severability
Solicitor General's Reply Brief for Respondents (Severability)
* Brief of Court-Appointed Amicus
* Amicus curiae briefs in support of petitioners
Brief of the American Center for Law & Justice et al. on the Severability Issue
Brief of America's Health Insurance Plans et al. on Severability
Brief of Texas Public Policy Foundation et al. on Severability
Brief of the Chamber of Commerce on Severability
Brief of the Family Research Council et al. on Severability
Brief of the American Civil Rights Union on Severability
Brief of Competitive Enterprise Institute et al. (Severability Issue)
Brief for Economists Regarding Severability
Brief of Justice and Freedom Fund (Severability)
Brief of National Restaurant Association (Severability)
* Amicus curiae briefs in support of United States
Brief of AARP et al.
Brief of National Indian Health Board et al.
Brief of American Medical Student Association et al.
Brief of American Public Health Association et al.
Brief of American Benefits Council
Brief of Michigan Legal Services et al.
* Amicus curiae briefs in support of neither party
Brief for the American Hospital Association et al. on Severability
* Amicus curiae briefs in support of the Court-appointed amicus
Brief of Washington and Lee Black Lung Clinic
Brief of Missouri Attorney General
Brief of America's Health Insurance Plans et al. on Severability
Brief of Texas Public Policy Foundation et al. on Severability
Brief of the Chamber of Commerce on Severability
Brief of the Family Research Council et al. on Severability
Brief of the American Civil Rights Union on Severability
Brief of Competitive Enterprise Institute et al. (Severability Issue)
Brief for Economists Regarding Severability
Brief of Justice and Freedom Fund (Severability)
Brief of National Restaurant Association (Severability)
* Amicus curiae briefs in support of United States
Brief of AARP et al.
Brief of National Indian Health Board et al.
Brief of American Medical Student Association et al.
Brief of American Public Health Association et al.
Brief of American Benefits Council
Brief of Michigan Legal Services et al.
* Amicus curiae briefs in support of neither party
Brief for the American Hospital Association et al. on Severability
* Amicus curiae briefs in support of the Court-appointed amicus
Brief of Washington and Lee Black Lung Clinic
Brief of Missouri Attorney General
HHS v. Florida (No. 11-398)
Supreme Court docket sheet:
Available here.
Decisions below:
Florida v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (on motion to dismiss)
Florida v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (on motions for summary judgment)
Florida v. HHS, 648 F.3d 1235 (CA11 2011)
Certiorari stage documents:
Petition for a writ of certiorari
Appendix to petition
Brief in response for State Respondents
Brief in response for Private Respondents
Reply brief of the United States
Brief of Chamber of Commerce as amicus curiae
Brief of America's Health Insurance Plans as amicus curiae
Brief of the California Endowment as amicus curiae
Brief of the American Hospital Association et al. as amici curiae
Merits stage documents (minimum coverage provision):
* The parties' briefs
Solicitor General's Brief for Petitioners
Brief for the Private Respondents
Brief for the State Respondents
Solicitor General's Reply Brief for Petitioners
* Amicus curiae briefs in support of United States
Brief of AARP
Brief of Health Care for All et al.
Brief of Health Care Policy History Scholars
Brief of Jewish Alliance for Law & Social Action et al.
Brief of Prescription Policy Choices et al.
Brief of State Legislators
Brief of American Nurses Association et al.
Brief of 104 Health Law Professors
Brief of the California Endowment
Brief of Senate Majority Leader Harry Reid et al.
Brief of American Cancer Society et al.
Brief of Small Business Majority Foundation et al.
Brief of National Women's Law Center et al.
Brief of Young Invincibles
Brief of American Hospital Association et al.
Brief of Service Employees International Union et al.
Brief of State of Maryland et al.
Brief of Commonwealth of Massachusetts
Brief of Governor of Washington Christine Gregoire
Brief of Child Advocacy Organizations
Brief of Blue Cross and Blue Shield of Massachusetts
Brief of American Association of People with Disabilities et al.
Brief of Constitutional Law Scholars
Brief of LAMBDA Legal Defense and Education Fund et al.
Brief of Constitutional Law and Economics Professors
Brief of Economic Scholars
Brief of NAACP Legal Defense & Educational Fund et al.
Brief of David R. Riemer et al.
Brief of Advocacy for Patients with Chronic Illness
Brief of CALPERS
Brief of Barry Friedman, Matthew Adler, et al.
* Amicus curiae briefs in support of neither party
Brief of Health Foundation of Greater Cincinnati
* Amicus curiae briefs in support of respondents
Brief of Senator Rand Paul
Brief of Landmark Legal Foundation
Brief of Cato Institute et al.
Brief of American College of Pediatricians et al.
Brief of Tax Foundation
Brief of Liberty University et al.
Brief of American Center for Law and Justice et al.
Brief of Washington Legal Foundation et al.
Brief of Center for Constitutional Jurisprudence et al.
Brief of Independent Women's Forum
Brief of Employer Solutions Staffing Group
Brief of Citizens' Council for Health Freedom
Brief of Speaker John Boehner
Brief of Docs4PatientCare et al.
Brief of Members of the United States Senate
Brief of Institute for Justice
Brief of Montana Shooting Sports Association
Brief of Association of American Physicians and Surgeons et al.
Brief of Judicial Watch, Inc.
Brief of Economists
Brief of Single Payer Action et al.
Brief of Project Liberty
Brief of Commonwealth of Virginia et al.
Brief of Rutherford Institute
Brief of Texas Public Policy Foundation
Brief of Mountain States Legal Foundation
Brief of Virginia Delegate Bob Marshall et al.
Brief of Catholic Vote and Steven J. Willis
Brief of American Legislative Exchange Council
Brief of Authors of The Origins of the Necessary and Proper Clause et al.
Brief of Partnership for America
Brief of Citizens and Legislators in Fourteen Health Care Freedom States
Brief of the Missouri Attorney General
Brief of Caesar Rodney Institute
Brief of State of Oklahoma
Brief of Thomas More Law Center et al.
Brief of Egon Mittelman, Esq.
Brief of Foundation for Moral Law
Brief of Liberty Legal Foundation
Brief of Stephen M. Trattner
Brief of 1851 Center for Constitutional Law
Brief of Former U.S. Department of Justice Officials
Brief of American Civil Rights Union et al.
Brief of American Catholic Lawyers Association
Brief of HSA Coalition et al.
Brief of American Life League
Merits stage documents (Anti-Injunction Act):
* Court-Appointed Amicus Robert A. Long
Brief for Court-Appointed Amicus Curiae Supporting Vacatur
Reply Brief for Court-Appointed Amicus Curiae
* The parties' briefs
Brief for Private Respondents
Solicitor General's Reply Brief for the Petitioners
Reply Brief for State Respondents
Reply Brief for Private Respondents
* Amicus curiae briefs in support of vacatur
Brief of Tax Law Professors
Brief of Mortimer Caplin and Sheldon Cohen
* Amicus curiae briefs in support of petitioners or respondents
Brief of Cato Institute
Brief of Liberty University et al.
Brief of American Center for Law and Justice
Brief of State Chambers of Commerce et al.
Brief of Center for Fair Administration of Taxes
Available here.
Decisions below:
Florida v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (on motion to dismiss)
Florida v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (on motions for summary judgment)
Florida v. HHS, 648 F.3d 1235 (CA11 2011)
Certiorari stage documents:
Petition for a writ of certiorari
Appendix to petition
Brief in response for State Respondents
Brief in response for Private Respondents
Reply brief of the United States
Brief of Chamber of Commerce as amicus curiae
Brief of America's Health Insurance Plans as amicus curiae
Brief of the California Endowment as amicus curiae
Brief of the American Hospital Association et al. as amici curiae
Merits stage documents (minimum coverage provision):
* The parties' briefs
Solicitor General's Brief for Petitioners
Brief for the Private Respondents
Brief for the State Respondents
Solicitor General's Reply Brief for Petitioners
* Amicus curiae briefs in support of United States
Brief of AARP
Brief of Health Care for All et al.
Brief of Health Care Policy History Scholars
Brief of Jewish Alliance for Law & Social Action et al.
Brief of Prescription Policy Choices et al.
Brief of State Legislators
Brief of American Nurses Association et al.
Brief of 104 Health Law Professors
Brief of the California Endowment
Brief of Senate Majority Leader Harry Reid et al.
Brief of American Cancer Society et al.
Brief of Small Business Majority Foundation et al.
Brief of National Women's Law Center et al.
Brief of Young Invincibles
Brief of American Hospital Association et al.
Brief of Service Employees International Union et al.
Brief of State of Maryland et al.
Brief of Commonwealth of Massachusetts
Brief of Governor of Washington Christine Gregoire
Brief of Child Advocacy Organizations
Brief of Blue Cross and Blue Shield of Massachusetts
Brief of American Association of People with Disabilities et al.
Brief of Constitutional Law Scholars
Brief of LAMBDA Legal Defense and Education Fund et al.
Brief of Constitutional Law and Economics Professors
Brief of Economic Scholars
Brief of NAACP Legal Defense & Educational Fund et al.
Brief of David R. Riemer et al.
Brief of Advocacy for Patients with Chronic Illness
Brief of CALPERS
Brief of Barry Friedman, Matthew Adler, et al.
* Amicus curiae briefs in support of neither party
Brief of Health Foundation of Greater Cincinnati
* Amicus curiae briefs in support of respondents
Brief of Senator Rand Paul
Brief of Landmark Legal Foundation
Brief of Cato Institute et al.
Brief of American College of Pediatricians et al.
Brief of Tax Foundation
Brief of Liberty University et al.
Brief of American Center for Law and Justice et al.
Brief of Washington Legal Foundation et al.
Brief of Center for Constitutional Jurisprudence et al.
Brief of Independent Women's Forum
Brief of Employer Solutions Staffing Group
Brief of Citizens' Council for Health Freedom
Brief of Speaker John Boehner
Brief of Docs4PatientCare et al.
Brief of Members of the United States Senate
Brief of Institute for Justice
Brief of Montana Shooting Sports Association
Brief of Association of American Physicians and Surgeons et al.
Brief of Judicial Watch, Inc.
Brief of Economists
Brief of Single Payer Action et al.
Brief of Project Liberty
Brief of Commonwealth of Virginia et al.
Brief of Rutherford Institute
Brief of Texas Public Policy Foundation
Brief of Mountain States Legal Foundation
Brief of Virginia Delegate Bob Marshall et al.
Brief of Catholic Vote and Steven J. Willis
Brief of American Legislative Exchange Council
Brief of Authors of The Origins of the Necessary and Proper Clause et al.
Brief of Partnership for America
Brief of Citizens and Legislators in Fourteen Health Care Freedom States
Brief of the Missouri Attorney General
Brief of Caesar Rodney Institute
Brief of State of Oklahoma
Brief of Thomas More Law Center et al.
Brief of Egon Mittelman, Esq.
Brief of Foundation for Moral Law
Brief of Liberty Legal Foundation
Brief of Stephen M. Trattner
Brief of 1851 Center for Constitutional Law
Brief of Former U.S. Department of Justice Officials
Brief of American Civil Rights Union et al.
Brief of American Catholic Lawyers Association
Brief of HSA Coalition et al.
Brief of American Life League
Merits stage documents (Anti-Injunction Act):
* Court-Appointed Amicus Robert A. Long
Brief for Court-Appointed Amicus Curiae Supporting Vacatur
Reply Brief for Court-Appointed Amicus Curiae
* The parties' briefs
Brief for Private Respondents
Solicitor General's Reply Brief for the Petitioners
Reply Brief for State Respondents
Reply Brief for Private Respondents
* Amicus curiae briefs in support of vacatur
Brief of Tax Law Professors
Brief of Mortimer Caplin and Sheldon Cohen
* Amicus curiae briefs in support of petitioners or respondents
Brief of Cato Institute
Brief of Liberty University et al.
Brief of American Center for Law and Justice
Brief of State Chambers of Commerce et al.
Brief of Center for Fair Administration of Taxes
NFIB v. Sebelius (No. 11-393)
Supreme Court docket sheet:
Available here
Decisions below:
Florida v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (on motion to dismiss)
Florida v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (on motions for summary judgment)
Florida v. HHS, 648 F.3d 1235 (CA11 2011)
Certiorari stage documents:
NFIB petition for a writ of certiorari
United States's brief in response (also response in No. 11-400)
Brief of Chamber of Commerce as amicus curiae
Brief of America's Health Insurance Plans as amicus curiae
Brief of Landmark Legal Legal Foundation as amicus curiae
Brief of Family Research Council et al. as amicus curiae
Merits stage documents:
* Briefs for the parties
Brief for Private Petitioners on Severability
Brief for State Petitioners on Severability
Solicitor General's Brief for Respondents (Severability)
Reply Brief for Private Petitioners on Severability
Reply Brief for State Petitioners on Severability
Solicitor General's Reply Brief for Respondents (Severability)
* Brief of Court-Appointed Amicus
Brief of Court-Appointed Amicus Curiae H. Bartow Farr, III
* Amicus curiae briefs in support of petitioners
Brief of Members of the United States Senate on the Issue of Severability
Brief of the American Center for Law & Justice et al. on the Severability Issue
Brief of America's Health Insurance Plans et al. on Severability
Brief of Texas Public Policy Foundation et al. on Severability
Brief of the Chamber of Commerce on Severability
Brief of the Family Research Council et al. on Severability
Brief of the American Civil Rights Union on Severability
Brief of Competitive Enterprise Institute et al. (Severability Issue)
Brief for Economists Regarding Severability
Brief of Justice and Freedom Fund (Severability)
Brief of National Restaurant Association (Severability)
Brief of Western Center for Journalism on Severability
* Amicus curiae briefs in support of respondents
Brief of American Academy of Actuaries
Brief of California et. al.
Brief of AARP et al.
Brief of National Indian Health Board et al.
Brief of American Medical Student Association et al.
Brief of American Public Health Association et al.
Brief of American Benefits Council
Brief of Michigan Legal Services et al.
* Amicus curiae briefs in support of neither party
Brief for the American Hospital Association et al. on Severability
* Amicus curiae briefs in support of the Court-appointed amicus
Brief of Asian and Pacific Islander American Health Forum et al.
Brief of David Riemer et al.
Brief of Washington and Lee Black Lung Clinic
Brief of Missouri Attorney General
Available here
Decisions below:
Florida v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (on motion to dismiss)
Florida v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (on motions for summary judgment)
Florida v. HHS, 648 F.3d 1235 (CA11 2011)
Certiorari stage documents:
NFIB petition for a writ of certiorari
United States's brief in response (also response in No. 11-400)
Brief of Chamber of Commerce as amicus curiae
Brief of America's Health Insurance Plans as amicus curiae
Brief of Landmark Legal Legal Foundation as amicus curiae
Brief of Family Research Council et al. as amicus curiae
Merits stage documents:
* Briefs for the parties
Brief for Private Petitioners on Severability
Brief for State Petitioners on Severability
Solicitor General's Brief for Respondents (Severability)
Reply Brief for Private Petitioners on Severability
Reply Brief for State Petitioners on Severability
Solicitor General's Reply Brief for Respondents (Severability)
* Brief of Court-Appointed Amicus
Brief of Court-Appointed Amicus Curiae H. Bartow Farr, III
* Amicus curiae briefs in support of petitioners
Brief of Members of the United States Senate on the Issue of Severability
Brief of the American Center for Law & Justice et al. on the Severability Issue
Brief of America's Health Insurance Plans et al. on Severability
Brief of Texas Public Policy Foundation et al. on Severability
Brief of the Chamber of Commerce on Severability
Brief of the Family Research Council et al. on Severability
Brief of the American Civil Rights Union on Severability
Brief of Competitive Enterprise Institute et al. (Severability Issue)
Brief for Economists Regarding Severability
Brief of Justice and Freedom Fund (Severability)
Brief of National Restaurant Association (Severability)
Brief of Western Center for Journalism on Severability
* Amicus curiae briefs in support of respondents
Brief of American Academy of Actuaries
Brief of California et. al.
Brief of AARP et al.
Brief of National Indian Health Board et al.
Brief of American Medical Student Association et al.
Brief of American Public Health Association et al.
Brief of American Benefits Council
Brief of Michigan Legal Services et al.
* Amicus curiae briefs in support of neither party
Brief for the American Hospital Association et al. on Severability
* Amicus curiae briefs in support of the Court-appointed amicus
Brief of Asian and Pacific Islander American Health Forum et al.
Brief of David Riemer et al.
Brief of Washington and Lee Black Lung Clinic
Brief of Missouri Attorney General
Dedicated pages for Supreme Court documents
We are now at the stage where handy links at the top for all the documents that have been filed in the various cases would be useful. So the next six posts will provide those. I will then create some links to those posts, which will be updated as matters proceed.
Another amicus brief
Another cert stage amicus curiae brief has been filed, this one specifically in Florida v. HHS (No. 11-400). The brief has been filed by the American Center for Law and Justice, 105 Members of Congress, and the Supreme Court Committee to Declare Obamacare Unconstitutional.
The brief argues that the Court should grant review to decide (1) whether the minimum essential coverage provision exceeds Congress's enumerated powers, and (2) if not, whether the mandate can be severed from the rest of the ACA. (I have a hunch these folks will get their wish.)
You can access the brief here.
The brief argues that the Court should grant review to decide (1) whether the minimum essential coverage provision exceeds Congress's enumerated powers, and (2) if not, whether the mandate can be severed from the rest of the ACA. (I have a hunch these folks will get their wish.)
You can access the brief here.
Government files reply brief in Florida v. HHS
The Solicitor General has filed the government's cert reply brief in HHS v. Florida (No. 11-398). You can access that brief here.
AHIP's cert brief
The cert-stage amicus curiae brief for America's Health Insurance Plans (authored by Patricia Millet et al. at Akin Gump, rather than Seth Waxman and his colleagues at Wilmer, who had written the Fourth Circuit brief) can be found here.
Wednesday, October 26, 2011
November 10 conference
Sorry--I was in Berkeley today, speaking at a joint Federalist Society-ACS event concerning the constitutionality of the ACA. (I seem to be away from a computer whenever there is big ACA-related news.)
The news from today, as has been widely reported, is that the five petitions in which responses have been filed (all pending ACA petitions except that in Virginia v. Sebelius) were distributed today to the justices' chambers, and they are now scheduled for discussion at the November 10 conference. It seems highly likely (for all the reasons we have been discussing) that the Court will vote to grant cert that day--in at least one of the cases, on at least the question of the minimum essential coverage provision's constitutionality. We are therefore likely to see an order from the Court granting certiorari either in the afternoon of November 10, or at 10:00 a.m. on Monday, November 14, as part of the regular order list.
Of course, the Court has a variety of decisions to make with respect to which petitions to grant and which specific questions to accept for review. We will discuss that subject further here in the coming days. (Lyle Denniston of SCOTUSblog has a good discussion of these matters here.) But whatever the Court decides on these questions, we are now probably looking at oral argument in the last week of March. If anyone wants to participate in a pool, I am picking March 28.
The news from today, as has been widely reported, is that the five petitions in which responses have been filed (all pending ACA petitions except that in Virginia v. Sebelius) were distributed today to the justices' chambers, and they are now scheduled for discussion at the November 10 conference. It seems highly likely (for all the reasons we have been discussing) that the Court will vote to grant cert that day--in at least one of the cases, on at least the question of the minimum essential coverage provision's constitutionality. We are therefore likely to see an order from the Court granting certiorari either in the afternoon of November 10, or at 10:00 a.m. on Monday, November 14, as part of the regular order list.
Of course, the Court has a variety of decisions to make with respect to which petitions to grant and which specific questions to accept for review. We will discuss that subject further here in the coming days. (Lyle Denniston of SCOTUSblog has a good discussion of these matters here.) But whatever the Court decides on these questions, we are now probably looking at oral argument in the last week of March. If anyone wants to participate in a pool, I am picking March 28.
AHIP files amicus cert brief
The organization America's Health Insurance Plans has filed a cert-stage amicus curiae brief in the three Florida cases--though I have yet to locate a copy. (I can just see on the docket sheets that it has been filed.) You will recall that AHIP also filed an amicus brief at the Fourth Circuit in Virginia v. Sebelius. (You can access that brief here.) That brief focused exclusively on the severability issue, and argued (as one would expect) that, if the individual mandate is declared unconstitutional, several other aspects of the ACA's regulation of the insurance industry must be voided as well. I would guess that this brief argues much the same. I will post a copy once I can find one.
Tuesday, October 25, 2011
Chamber of Commerce files amicus cert brief
Speaking of amicus briefs . . . .
The United State Chamber of Commerce's National Litigation Center--perhaps the second most active and influential litigant at the Supreme Court, next only to the Solicitor General--has filed a cert-stage amicus curiae brief, applicable to Nos. 11-393 (NFIB v. Sebelius), 11-398 (HHS v. Florida), and 11-400 (Florida v. HHS). You can access the brief here.
As one might expect, the brief makes two basic points:
1. This case is of enormous importance to the business community, so the Court should grant cert forthwith to eliminate the cloud of uncertainty that hovers over the entire ACA; and
2. If the minimum essential coverage provision is unconstitutional, declaring only it unconstitutional (without voiding other ACA regulations of the insurance market) "will have disastrous consequences for the health insurance market."
The Chamber has retained appellate attorneys at O'Melveny & Meyers to co-author the brief.
The United State Chamber of Commerce's National Litigation Center--perhaps the second most active and influential litigant at the Supreme Court, next only to the Solicitor General--has filed a cert-stage amicus curiae brief, applicable to Nos. 11-393 (NFIB v. Sebelius), 11-398 (HHS v. Florida), and 11-400 (Florida v. HHS). You can access the brief here.
As one might expect, the brief makes two basic points:
1. This case is of enormous importance to the business community, so the Court should grant cert forthwith to eliminate the cloud of uncertainty that hovers over the entire ACA; and
2. If the minimum essential coverage provision is unconstitutional, declaring only it unconstitutional (without voiding other ACA regulations of the insurance market) "will have disastrous consequences for the health insurance market."
The Chamber has retained appellate attorneys at O'Melveny & Meyers to co-author the brief.
States file their reply brief in Florida v. HHS
The 26 state government plaintiffs have filed their reply brief in Florida v. HHS (No. 11-440). You can access that brief here.
Also, I should note (as most of you probably know already) that the Supreme Court has set up a web page with the documents that have been filed in these cases. You can access that page here. It is unclear whether this page will also house access to the avalanche of amicus curiae briefs that soon awaits us. We should find out soon.
Also, I should note (as most of you probably know already) that the Supreme Court has set up a web page with the documents that have been filed in these cases. You can access that page here. It is unclear whether this page will also house access to the avalanche of amicus curiae briefs that soon awaits us. We should find out soon.
Thursday, October 20, 2011
Next Wednesday
The next significant event to occur internally at the Supreme Court related to the ACA cases is for the clerk's office to distribute the various cert petitions to the justices' chambers for consideration. As of now, briefing is essentially complete in five of the six petitions (but for the United States's response to Virginia's petition in Virginia v. Sebelius, and the various reply and amicus briefs, which are only optional). Thus, five of the six cases are now ready for distribution.
The Court's case distribution schedule is available here. As you will see, the next distribution date is Wednesday, October 26. If the cases are indeed distributed on that date (which we can check on the Court's docket sheets), we will know that they are scheduled for consideration by the justices at the November 10 conference.
(Of course, one or more justices could ask for more time to consider the petitions, which would cause the cases to be "re-listed" and scheduled for discussion at the next conference, November 22. And justices can ask for more time still; cases are often re-listed more than once.)
In all events, we should know more about the timing of the Court's intervention very soon.
The Court's case distribution schedule is available here. As you will see, the next distribution date is Wednesday, October 26. If the cases are indeed distributed on that date (which we can check on the Court's docket sheets), we will know that they are scheduled for consideration by the justices at the November 10 conference.
(Of course, one or more justices could ask for more time to consider the petitions, which would cause the cases to be "re-listed" and scheduled for discussion at the next conference, November 22. And justices can ask for more time still; cases are often re-listed more than once.)
In all events, we should know more about the timing of the Court's intervention very soon.
Wednesday, October 19, 2011
November 10 conference?
As usual, Lyle Denniston of SCOTUSblog has some keen analysis (available here) on when, in light of yesterday's filings, the Court is likely take up the various cert petitions. November 11 is a federal holiday. So if the cases are considered November 10, the order list announcing that one or more of the petitions had been granted would presumably issue at 10:00 a.m. on Monday, November 14.
Oral argument tomorrow at the Eighth Circuit
Most of the attention is currently on the six cert petitions pending at the Supreme Court--and rightly so. But it is also worth mentioning that the Eighth Circuit will be hearing argument tomorrow in Kinder v. Geithner in St. Paul, Minnesota. The panel consists of Circuit Judges Kermit E. Bye (appointed by President Clinton), Lavenski R. Smith (appointed by President George W. Bush), and Steven M. Colloton (also appointed by President George W. Bush).
Again, the District Court dismissed this lawsuit on the ground that it lacked subject matter jurisdiction. (You can access that opinion here.) Thus, the Eighth Circuit may very well limit itself to the jurisdictional questions -- just as the Third and Ninth Circuits have done in similar cases. But taking no chances, the parties and numerous amici have also addressed the merits. So it is certainly conceivable that the court, if it concludes that the matter is justiciable, would proceed to address the constitutionality of the minimum coverage provision.
Again, the District Court dismissed this lawsuit on the ground that it lacked subject matter jurisdiction. (You can access that opinion here.) Thus, the Eighth Circuit may very well limit itself to the jurisdictional questions -- just as the Third and Ninth Circuits have done in similar cases. But taking no chances, the parties and numerous amici have also addressed the merits. So it is certainly conceivable that the court, if it concludes that the matter is justiciable, would proceed to address the constitutionality of the minimum coverage provision.
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