A reason for granting separately on the severability question

A number of people have asked why the Court felt the need to grant review on the severability issue as a separate question presented. For the Court, were it to hold that the minimum essential coverage provision exceeds Congress's enumerated powers, would have to face the severability question regardless. Indeed, I would hazard a guess that, in most cases in which the issue of severability has arisen, it has not been presented to the Court in the cert petition as a separate question.

It occurs to me, though, that there is a very practical reason for doing so here: Had the Court not set aside a separate 90 minutes to explore the issue, any questions from the justices about the severability of the individual mandate would have been taken by the public and the media as a signal that the questioning justice believed that the mandate was unconstitutional. (For why else would he be asking about its severability?) Of course, this would not have affected the outcome in any way. But in a case where the media will by hyper-sensitive to even the slightest move by any of the justices, its helpful to diffuse this dynamic. As a separate question, with a separate 90 minutes, all nine (well, I guess eight) can explore it robustly without any concern as to what they might be signaling.

A tentative schedule

This may well be adjusted slightly by the Court in the coming days. But based on the Court's rules, absent further modification, here are the tentative due dates for the briefs. (Note that all of the parties are a petitioner and a respondent in at least one of the cases. Thus, the United States, the NFIB, and the states will all be filing briefs as petitioners and briefs as respondents.)

1. December 29: briefs for the petitioners.

2. January 5: amicus curiae briefs supporting the petitioners.

3. January 30: briefs for the respondents.

4. February 6: amicus curiae briefs supporting the respondents.

5. March 7: reply briefs for the petitioners.

With this briefing schedule, it seems likely the Court would hear the cases the week of March 26. Currently, March 26, 27, and 28 of that week are scheduled as argument days. The justices can adjust things as they please, but it seems most likely that the Court will schedule these arguments for one or two of those days.

The questions presented

Here is a comprehensive list of the questions on which the Court granted certiorari this morning:

On severability (90 minutes of argument):

1(a). (From NFIB v. Sebelius) "The question presented is whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution."

1(b). (Question 3 from Florida v. HHS) "[T]o what extent  (if any) can  the mandate  be severed from the remainder of the Act?"

On the constitutionality of the minimum coverage provision (2 hours of argument):

2. (From HHS v. Florida) "Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision."

On the Anti-Injunction Act (1 hour of argument):

3. (Added by the Court in its order this morning) "Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a)."


On the constitutionality of the ACA's Medicaid amendments (1 hour of argument):


4. (Question 1 from Florida v. HHS) "Does Congress exceed its enumerated powers and violate basic principles of federalism when  it coerces States into accepting onerous conditions that  it  could not impose  directly by threatening to withhold all  federal  funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending  power  that this Court  recognized in  South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?"

Big news is the Medicaid grant

Again, the really big news of the morning -- if there is anything surprising -- is that the Court has decided to take up the constitutionality of the ACA's Medicaid amendments. Specifically, the question is whether the spending conditions that the ACA imposes on the states are effectively "coercive," such that they amount to an impermissible commandeering. There is no split on the question, and no lower court judge has yet voted to uphold the states' claim. But the Court will take it up.

As a purely legal matter, this is a bigger issue than the individual mandate. For much of the modern liberal state is undwerwritten by Congress's use of the conditional spending power.

No action on the other petitions

Just to confirm, the Court took no action on the three other pending petitions, those in Thomas More Law Center v. Obama (No. 11-117), Liberty University v. Geithner (No. 11-438), or Virginia v. Sebelius (No. 11-420). In all likelihood, the Court will simply hold these petitions until June, and then dispose of them in a manner consistent with its holding in the Florida case (meaning either they will deny cert or grant, vacate, and remand).

Five and a half hours of argument

Perhaps I have misread the order, but it looks as if the Court has set aside five and a half hours for oral argument: 90 minutes for the issues raised in both the NFIB and Florida petitions, 2 hours for the U.S. petition, 1 hour for the AIA issue, and 1 hour for Question 1 in Florida's petition (the constitutionality of the Medicaid amendments). This probably means it will take up two full days on the argument calendar, perhaps March 27 and 28. Not quite what happened for McCulloch (which I think was a whole week of argument), but as close as we have come in a long while.

Court takes Medicaid question

So here are the two biggest consequences of the order:

* The Court has limited itself to the Florida case, and is presumably holding the Thomas More Law Center and Liberty University petitions. (It will likely need to appoint someone to argue the AIA question against the parties.)

* The Court granted on the Medicaid question. This is a bit of a surprise, raising the constitutional stakes of the case rather substantially. For if the Court were cut back on Congress's spending power, it would have significant long-term ramifications for the scope of federal power.

Court grants

The order list is here.

Here is the substance of the grant:

11-393 )  NAT. FED'N INDEP. BUSINESS V. SEBELIUS, SEC. OF H&HS, ET AL.
11-400 )  FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL.
The petition for a writ of certiorari in No. 11-393 is granted. The petition for a writ of certiorari in No. 11-400 is granted limited to the issue of severability presented by Question 3 of the petition.  The cases are consolidated and a total of 90 minutes is allotted for oral argument.

11-398  DEPT. OF H&HS, ET AL. V. FLORIDA, ET AL.
The petition for a writ of certiorari is granted. In addition to Question 1 presented by the petition, the parties are directed to brief and argue the following question: "Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a)." A total of two hours is allotted for oral argument on Question 1. One hour is allotted for oral argument on the additional question.

11-400 FLORIDA, ET AL. V. DEPT. OF H&HS, ET AL.
The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.

Tune into SCOTUSblog

Beginning at 9:50 EST, SCOTUSblog will have live blog coverage of the Court's release of its order list. So you can tune in here for the play-by-play action.

The biggest questions for Monday morning

It seems a foregone conclusion that the Court will, in one form or another, grant review tomorrow morning to review the constitutionality of the ACA. So what suspense is there in the order list to be issued at 10:00 a.m.? Here are the two most significant questions likely to be resolved tomorrow morning.

1. Will the Court grant any of the petitions other than those from the Florida case? The Florida case (and its three petitions in Nos. 11-393, 11-398, and 11-400) presents the Court with the best vehicle for deciding the constitutionality of the mandate. It has both states and private individuals as plaintiffs. It has Paul Clement as a principal lawyer for the challengers. It is the only case that presents the Medicaid question. It gives the Court the chance to decide every significant issue in the litigation. Thus, there seems little doubt the Court will grant one or more of these petitions. The only real question is whether it will take up the others--Thomas More Law Center v. Obama or Liberty University v. Geithner. My guess is no. My guess is that the Court grants the Florida petitions but holds the other two (and then holds Virginia v. Sebelius as well).

2. Will the Court grant on any questions other than the constitutionality of 26 U.S.C. 5000A? The overwhelming consensus that the Court will grant tomorrow concerns only the constitutionality of the minimum coverage provision. And if the Court takes up that question, it will necessarily have to take up any jurisdictional questions that might prevent it from ruling on the merits. (The does not mean that the Court will necessarily decide whether the Anti-Injunction Act applies here, if 26 U.S.C. 7421(a) is not jurisdictional. But at the very least the Court must decide whether the AIA is jurisdictional.) Moreover, if the Court holds any aspect of the ACA unconstitutional, it will have to face the severability question. But will the Court grant on any of the other questions presented in the petitions, such as (1) whether the ACA's Medicaid provisions exceed Congress's spending power, (2) whether the employer mandate as applied to state governments violates the structural principles of federalism, or (3) whether the employer mandates imposed on private employers exceed Congress's enumerated powers. The most likely of the three is the Medicaid question. And there is some reason to think that the Court might want that question in front of it, in part so it could potentially "split the baby" and thus appear a little less partisan. (Recall Grutter and Gratz, or Van Orden and McCreary.) The other questions seem like longshots. Even on the Medicaid question, I think the chances are less than 50 percent.

There are some other outstanding issues as well, to be sure. First, if the Court only grants the petitions from the Florida cases, it will probably need to appoint someone to argue that the AIA precludes jurisdiction. (Two possibilities are Alan Morrison, who has authored the amicus briefs on behalf of former IRS Commissioners Mortimer Caplin and Sheldon Cohen, or Kevin Walsh, a former Scalia clerk and author of multiple amicus briefs filed in the lower courts addressing jurisdictional issues.) Second, the Court could rephrase some of the questions presented, though this seems unlikely. Finally, the Court might also set a briefing schedule, though the default rules would seem to work just fine for a late March argument.

But these are procedural details. The real substance of tomorrow's events will concern the cases and questions granted. Should be a fun morning.

Monday

The Court has just announced that there will be no orders issued this afternoon. So Monday morning at 10:00 EST it will be.

Symposium in Richmond

In the event something big happens today, I will be en route to Richmond, Virginia, to participate in the University of Richmond School of Law's Allen Chair Symposium, "Everything But the Merits: Analyzing the Procedural Aspects of the Healthcare Litigation." For those interested, you can find a symposium schedule here. And you can watch a live webcast of the symposium through a link available here.

Conference tomorrow

I hardly need mention that the justices will be considering five of the six ACA cert petitions at their private conference tomorrow morning (those filed in Thomas More Law Center v. Obama, NFIB v. Sebelius, HHS v. Florida, Florida v. HHS, and Liberty University v. Geithner).

It is conceivable that the Court will issue an order tomorrow afternoon, announcing that it has granted certiorari (and perhaps specifying the questions on which it has granted--if it grants in a case but does not accept all of the questions presented in that petition, or if it wants to re-phrase a question--and even a briefing schedule). More likely, the order will come down at 10:00 a.m. EST on Monday morning.

Of course, it is possible that the Court will do nothing definitive, and re-list the petitions for consideration at its next conference. If this occurs, it would be because the Court could not come to the necessary level of agreement  on which petitions to grant, or which specific questions to consider. Given how much time each of them has had to consider these matters, though, I'm guessing a re-list is unlikely.

Update on Virginia v. Sebelius

This is not the big news of the day, but some items to update on Virginia v. Sebelius (No. 11-420), now the sixth of the six ACA cases in the certiorari queue:

* The United States late last week filed its brief in response, which you can find here. The government argues that the Court should hold Virginia's petition pending the resolution of the other cases. (Virginia's petition would be largely beside the point if the Court upholds the ACA. But there is a chance the Court might reach the question of state standing to challenge the individual mandate in the Florida cases, and that might warrant a grant, vacate, and remand.)

* The clerk's office yesterday distributed Virginia's petition for the justices' November 22 conference. Consistent with the SG's recommendation, the odds are in favor of the Court simply holding the petition pending the outcome of the other cases.

BREAKING NEWS: D.C. Circuit upholds ACA

The D.C. Circuit has just issued an opinion upholding the individual mandate in Seven-Sky v. Holder. You can find the opinion here.

Judge Silberman wrote for a 2-0 majority. Judge Edwards concurred. Judge Kavanaugh concluded there was no jurisdiction.

More shortly.

UPDATE: Here is a quick outline of Silberman's opinion for the Court:

1. The Anti-Injunction Act does not deprive the court of jurisdiction because Congress did not intend the AIA to "cover penalties unconnected to tax liability or enforcement."

2. There is no "activity"-"inactivity" distinction in the text of the Constitution, or in the Supreme Court's precedents. If anything Wickard v. Filburn comes very close to authorizing the regulation of what the plaintiffs characterize as "inactivity."

3. "Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause." (p.34)

4. "That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations." (p.36)

Of course, the votes that really matter are those at the Supreme Court. In a sense, this decision merely operates as an additional brief for the justices to read in making their decision this spring. But I think it is hard to overestimate the importance of another highly esteemed Republican jurist (joining Judges Sutton and Marcus) writing a detailed, thoughtful opinion that upholds the mandate. I am making no comment on the merits here, but just a political observation. Judge Silberman's decision alters the political dynamic, and potentially substantially.

UPDATE 2: Judge Kavanaugh authored a 65-page (!) dissent concluding that the Anti-Injunction Act deprived the court of jurisdiction.

Response due in Virginia v. Sebelius

The response of the United States (which most likely will be a brief in opposition to certiorari) is due today in Virginia v. Sebelius (No. 11-420). I fully anticipate that the government will argue that the case does not warrant review, as (1) the Fourth Circuit did not reach the merits, and (2) the issue the Fourth Circuit did reach--whether Virginia has standing to challenge the minimum coverage provision based on its enactment of its Health Care Freedom Act--is unnecessary for the Court to resolve in order to address the ACA's constitutionality (and is arguably a question on which there is no split of authority). In other words, whether Virginia has standing is, at this point, largely a sideshow. For even if the Anti-Injunction Act deprives the Court of jurisdiction in the actions brought by the private plaintiffs, the Florida case already would present the state standing issue (as several of those states have comparable "health care freedom" laws).

I will post a copy of the government's brief (assuming it is filed today) as soon as I can find it.

Pacific Legal Foundation files amicus brief in Virginia v. Sebelius

The Pacific Legal Foundation--joined by Matthew Sissel, Americans for Choice in Medicine, and the Center for Constitutional Jurisprudence--has filed a cert stage amicus curiae brief in Virginia v. Sebelius (No. 11-420). The brief argues (1) that the Fourth Circuit's decision that Virginia lacks standing to challenge the individual mandate conflicts with rulings from the Second, Third, Fifth, and D.C. Circuits, and (2) the Court's decision in Massachusetts v. Mellon has caused confusion and needs to be clarified.

You can access the brief here.

Two more amicus briefs

A scan of the Supreme Court docket sheets shows that two more cert stage amicus curiae briefs have been filed--one by the Western Center for Journalism is HHS v. Florida (No. 11-398) and one by Lawrence J. Dickson, PhD., in Florida v. HHS (No. 11-400). I have been unable to locate copies of either brief, however. If someone out there happens to have one--or any other amicus briefs that I have missed--please feel free to send them my way, and I will be happy to post them.

UPDATE: I have found the Western Center for Journalism's brief on Westlaw (though not in a PDF form). And the second half of its argument is a "birther" claim--that the ACA is invalid because federal legislation must be signed by the sitting President (absent a veto override), and "Mr. Obama has not yet verified whether he meets all of the requirements for minimum eligibility, namely whether he is a natural born citizen." Needless to say, this claim was not raised by the challengers below and is not within the questions presented in the petitions.

Center for Constitutional Jurisprudence files amicus brief

The Center for Constitutional Jurisprudence, the Pacific Legal Foundation, and Matt Sissel have jointly filed a cert stage amicus curiae brief in Florida v. HHS (No. 11-400). The brief only addresses the question whether the ACA's Medicaid amendments exceed Congress's spending power (by coercing the states to expand their coverage). Specifically, it argues that the case "presents the opportunity to reaffirm that the Spending Clause, like the Commerce Clause, has outer limits," and that "[t]he coercion prong of the Dole Spending Clause analysis must be given effect." Counsel of record is John Eastman, a constitutional law professor at Chapman University School of Law. Former Attorney General Edwin Meese III is also on the brief.

You can access the brief here.

American Hospital Association files amicus brief

As they have in the lower courts, the American Hospital Association--joined by the Association of American Medical Colleges, the Catholic Health Association of the United States, Federation of American Hospitals, the National Association of Children’s Hospitals, and the National Association of Public Hospitals and Health Systems--have filed a cert stage amicus brief in HHS v. Florida (No. 11-398). The brief argues that the Court's "prompt review will resolve business uncertainty, allow uncontroversial ACA provisions to move forward, and begin addressing the crisis of uninsurance." It also argues that the Court should deny cert on whether the ACA's Medicaid provisions are constitutional.

You can access the brief here.