Amicus supporting the constitutionality of the individual mandate due today

Today is the due date for amicus curiae briefs supporting the United States in HHS v. Florida (No. 11-398), arguing that the ACA's minimum essential coverage provision is within Congress's enumerated powers. Based on what we saw in the circuit courts (roughly 15 amicus briefs supporting the government in each case), I am anticipating the filing of 30 to 35 briefs today, but that is just a guess.

Also due today (I think) would be any amicus briefs supporting the position of the Court-appointed amicus on the Anti-Injunction Act question. 

(By the way, if anyone out there is filing an amicus brief, and it is not too much trouble, I would be much obliged if you e-mailed me a copy at bjoondeph@scu.edu. Thanks!)

More amicus briefs on severability

All told, thirteen amicus curiae briefs have been filed thus far on the issue of severability (either in support of the petitioners or in support of neither party). In addition to the six I have already posted, there are these seven:

* American Civil Rights Union Amicus Curiae Brief in Support of Petitioners on Severability

* Brief of Amici Curiae Competitive Enterprise Institute, Thomas P. Miller, Joseph R. Antos, Christopher J. Conover, Earl L. Grinols, Michael A. Morrisey, Thomas J. Philipson, Scott E. Harrington, James C. Capretta, Robert Kaestner, and James W. Henderson in Support of Petitioners (Severability Issue)

* Brief for Amici Curiae Economists in Support of Petitioners Regarding Severability

* Brief of Justice and Freedom Fund as Amici Curiae in Support of Petitioners (Severability)

* Brief of Amicus Curiae National Restaurant Association in Support of Petitioners (Severability)

* Brief Amicus Curiae of Western Center of Journalism Supporting Petitioners on Severability

* Brief for the American Hospital Association et al. as Amici Curiae in Support of Neither Party on Severability

The amicus briefs supporting the United States on this issue are due the same day as the Government's brief, which is January 27.

An update on Seven-Sky

While the briefing unfolds at the Supreme Court in NFIB v. Sebelius, HHS v. Florida, and Florida v. HHS, the other cases continue to percolate. Over the next two weeks, I will try to provide updates on all of them. I will start with the most prominent one, that decided by the D.C. Circuit on November 8, Seven-Sky v. Holder.

On November 30, the plaintiffs filed a petition for a writ of certiorari, which you can access here. The petition raises two questions:

1. Whether the D.C. Circuit, in conflict with the Eleventh Circuit, erred in concluding that the Commerce and Necessary and Proper Clauses grant Congress virtually unlimited power to compel American citizens to purchase products from a private company, such as a health insurance policy, for the remainder of their lives or be penalized annually. 

2. Whether the D.C. Circuit, in conflict with Sherbert v. Verner, 374 U.S. 398 (1963), erred in concluding that Petitioners Seven-Sky and Lee have not stated a plausible claim that their religious exercise is substantially burdened when they allege that the individual mandate compels them to either violate their religious beliefs by participating in a health insurance system or pay annual penalties for adhering to their religious beliefs.

Last week, the United States filed its response, which you can access here. In essence, the government argues that (a) question 1 is raised in the Florida cases, and thus this petition should be held for that case's resolution, and (2) the second question presents no circuit split, and is factbound (specific to these specific plaintiffs' religious beliefs) regardless, and thus should be denied.

On Tuesday of this week, the plaintiffs filed their cert reply brief, which you can access here.

Most likely, the Court will simply hold this petition Until June. Once it hands down its decision in the Florida cases, the justices will either (1) grant this petition, vacate the decision, and remand it to the lower courts; (2) deny the petition outright; or (3) deny on question 1 but grant on question 2, if they find it independently certworthy.

States file brief on Medicaid issue

The state petitioners in Florida v. HHS (No. 11-400) have filed their brief on the Medicaid question. You can access that brief here.

This week in ACA filings at the Supreme Court

Here is a rough sketch of the briefs that are scheduled to be filed at the Supreme Court this week (as the justices contemplate the EPA's enforcement powers and the constitutionality of Section 5 of the Voting Rights Act and the FCC's regulation of fleeting expletives):

* Tomorrow (Tuesday), the states will file their brief on the Medicaid issue in Florida v. HHS (No. 11-400).

* On Friday, all amicus curiae briefs supporting the United States in HHS v. Florida (No. 11-398)--arguing that the minimum coverage provision is within Congress's enumerated powers--are due. (This should be in the neighborhood of 30 briefs, I'm guessing.)

* Friday is also the due date for any amicus briefs in support of the Court-appointed amicus curiae in HHS v. Florida (No. 11-398) on the Anti-Injunction Act issue.

Two more amicus briefs supporting reversal on severability

Two more amicus curiae briefs urging reversal on the severability issue have been filed at the Court, in Nos. 11-393 and 11-400:

* Brief of the Chamber of Commerce of the United States of America as Amicus Curiae in Support of Reversal as to the Severability Issue

* Brief of the Family Research Council and 27 Members of the U.S. House of Representatives as Amici Curiae in Support of Petitioners and Reversal on the Issue of Severability Issue

Per the Court's briefing order, the amicus briefs addressing severability were (and are) due the same date as the parties' briefs. Amicus briefs on the other issues follow the normal rule, which means they are due seven days following the due date for the parties.

Two more amicus briefs

Two more amicus curiae briefs have been filed (in Nos. 11-393 and 11-400) addressing the question of severabilty. They are:

* Brief of America's Health Insurance Plans and the Blue Cross Blue Shield Association as Amici Curiae in support of Reversal of the Court of Appeals' Severability Judgment.

* Brief of Amici Curiae Texas Public Policy Foundation and CATO Institute Supporting Petitioners on Severability.

Coverage of the topside briefs

Lots of discussion about the four briefs filed yesterday. Here is a brief survey:

* As usual, the place to start is Lyle Denniston's coverage for SCOTUSblog. He offers his typical, thorough analysis of the three briefs filed by the parties here, and of the brief filed by amicus Robert Long here.

* In Politico, David Nather has this report on the states' brief, and Jennifer Haberkorn has this story on the government's brief.

* Howard Bashman at How Appealing provides links here, here, and here.

* Margot Sanger-Katz has this report in The National Journal. 

* Robert Barnes has this article in the Washington Post.

* CNN has this story.

* Ariane de Vogue of ABC News offers this coverage.

* The Washington Times has this story.

* Greg Stohr of Bloomberg News has this story.

* Orin Kerr has these thoughts at Volokh Conspiracy.

* Timothy Jost offers these thoughts at Health Affairs.

All for now.

Today's filings

Here are the briefs filed thus far today, in one convenient place:

* The United States's Brief for Petitioners in HHS v. Florida (Minimum Coverage Provision)

* The Brief for State Petitioners on Severability in Florida v. HHS and NFIB v. Sebelius

* The Brief for Private Petitioners on Severability in NFIB v. Sebelius and Florida v. HHS

* Brief for Court-Appointed Amicus Curiae Supporting Vacatur (Anti-Injunction Act)

Enjoy!

UPDATE: I have also run across three amicus briefs that have already been written (if not officially filed at the Court), thanks to some helpful readers:

* Brief of AARP as Amicus Curiae in Support of Petitioners (Minimum Coverage Provision) (No. 11-398)

* Brief of the Members of the United States Senate as Amici Curiae in Support of Petitioners on the Issue of Severability (Nos. 11-393 and 11-400)

* Amici Curiae Brief of the American Center for Law & Justice, 117 Members of the United States Congress, and More Than 103,000 Supporters of the ACLJ in Support of Petitioners and Urging Reversal on the Severability Issue (Nos. 11-393 and 11-400)

UPDATE 2: I have just added the brief filed by the Court-appointed amicus cuiae, Robert A. Long, arguing that the Anti-Injunction Act bars the challengers' suit to enjoin enforcement of the minimum coverage provision.

States file brief on severability

The State of Florida et al. have filed their brief in NFIB v. Sebelius (No. 11-393) and Florida v. HHS (No. 11-400) on the issue of severability. You can access that brief here.

Private plaintiffs file brief on severability

The private plaintiffs (the NFIB, Kaj Ahlburg, and Mary Brown) have filed their brief (in Nos. 11-393 and 11-400) on the question of severability. You can access their brief here.

U.S. files brief

The Office of the Solicitor General has filed the United States's brief for the petitioner in HHS v. Florida (No. 11-398), addressing whether the minimum coverage provision exceeds Congress's enumerated powers. You can access the brief here.

UPDATE: Nothing terribly surprising after an initial skim. I would note the following items, though, as somewhat interesting: (1) the United States puts the integral-to-a-broader-regulatory-scheme argument first in its brief; (2) nonetheless, it devotes considerably more space to the "pure" Commerce Clause defense, that the minimum coverage provision is itself a regulation of economic activity (pp. 33-52); (3) while the overall content of the brief looks very similar to what we have been seeing from the government for the last year or so, this brief seems to do a more careful job of framing this case as being solely about legislative means, rather than ends; and (4) the SG has decidely not abandoned the taxing power argument, devoting a full 11 pages to it.

Four briefs due today

Four briefs are due to be filed at the Supreme Court by the close of business today. Those are:

* The brief of the United States in HHS v. Florida (No. 11-398) addressing whether the minimum essential coverage provision exceeds Congress's enumerated powers.

* The briefs of the private plaintiffs and the states in NFIB v. Sebelius (No. 11-393) and Florida v. HHS (No. 11-400) addressing whether, if the minimum essential coverage provision is unconstitutional, it is severable from the rest of the Affordable Care Act.

* The brief of amicus curiae Robert A. Long in HHS v. Florida (No. 11-398) addressing whether the anti-Injunction Act bars the suit brought by the challengers seeking to enjoin enforcement of the minimum essential coverage provision.

Lyle Denniston will have coverage over at SCOTUSblog and will have the briefs posted there shortly after they become available. It is believed that the Court itself will also make them available through its own web site. I will put them up here just as soon as I receive copies.

Happy reading, everyone!

Happy new year!

After (1) trying to compose a semi-competent con law final exam, (2) a flurry of pre-final-exam review sessions and office hours, (3) a week of grading said exams, and (4) taking an undeserved, 17-day vacation through Europe, I am now back at my office for the first time in more than three weeks. Not that anyone is really counting on me for anything, but I apologize for the dearth of posting. I still have half my exams to grade and two classes to prep (which start next week). But I plan to be back here at the blog on a regular basis, this week and through the duration. The topside briefs are due Friday, so there will be plenty to discuss shortly.

A heartfelt happy new year to all ACA litigation aficionados!

Briefing schedule set

Yesterday, the Supreme Court issued an order setting the briefing schedule on the four questions presented in the three ACA cases (Nos. 11-393, 11-398, and 11-400). Here is the calendar:


1.  Minimum essential coverage provision issue:

* The United States's brief as petitioner is due January 6

* The briefs of the respondents (the states and the private plaintiffs) are due February 6

* The United States's reply brief is due March 7



2.  Anti-Injunction Act issue:

* The brief of the Court-appointed amicus curiae is due January 6

* The briefs of the United States and the respondents are due February 6

* The reply briefs of the United States and the respondents are due February 27

* The amicus's reply brief is due March 12


3.  The severability issues:

* The briefs of the states and private plaintiffs are due January 6

* The United States's brief is due January 27

* The brief of the Court-appointed amicus curiae is due February 17

* The reply briefs of the United States, the states, and the private plaintiffs are due March 13



4.  The Medicaid issue:

* The states' brief is due January 10

* The United States's brief is due February 10

* The states' reply brief is due March 12


Per Supreme Court Rule 37.3 (a), all amicus briefs (other than those filed by the Court-appointed amicus) are due seven days following the filing of the brief by the party the amicus is supporting (on the relevant issue). Thus, the first major due date is January 13 -- for all amicus briefs supporting the federal government on the question of the individual mandate's constitutionality. (This is also the due date for all amicus briefs supporting the challengers on the severability question.)

All briefing will thus be complete by March 13. And this means the Court is most likely to schedule oral argument for two out of the following three days: March 26, 27, or 28.

Amici appointed for argument

The Supreme Court has just issued an order appointing two amici to argue the Anti-Injunction Act and severability points. Here is the text of the order in its entirety:

ORDERS IN PENDING CASES 

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. 

H. Bartow Farr, III, Esquire, of Washington, D.C., is invited to brief and argue these cases, as amicus curiae, in support of the judgment of the Court of Appeals that the minimum coverage provision of the Patient Protection and Affordable Care Act, 26 U.S.C. §5000A, is severable from the entirety of the remainder of the Act.  

11-398  DEPT. OF H&HS, ET AL. V. FLORIDA, ET AL.  

Robert A. Long, Esquire, of Washington, D.C., is invited to brief and argue this case, as amicus curiae, in support of the position that the Anti-Injunction Act, 26 U.S.C. §7421(a), bars the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act, 26 U.S.C. §5000A. 

You can find the order here.

Here is a biography of Mr. Long from the Covington & Burling web site:

Robert Long is a partner who practices in the areas of appellate litigation, antitrust, and administrative law. He chairs the firm’s Appellate and Supreme Court Litigation Group. Mr. Long has argued 16 cases before the U.S. Supreme Court and has played a substantial role in the briefing or oral argument of more than 100 cases in federal and state appellate courts. He was a law clerk to Justice Lewis F. Powell, Jr., of the U.S. Supreme Court and Judge John Minor Wisdom of the U.S. Court of Appeals for the Fifth Circuit. From 1990 to 1993, he served as an Assistant to the Solicitor General of the United States. He is recognized as a leading appellate lawyer in Best Lawyers in America (also listed for administrative law, commercial litigation, banking and finance litigation, and ERISA litigation), Chambers USA: America's Leading Lawyers, Guide to the World's Leading Lawyers, Washingtonian "Top Lawyers," and Super Lawyers (also listed in the "Top 100" Lawyers in Washington, DC).  Mr. Long is an adjunct professor at Georgetown University Law Center.

Mr. Farr is a named partner in the well known D.C. firm Farr & Taranto. He clerked for then-Associate Justice William H. Rehnquist (October term 1973), and served from 1976 to 1978 as an assistant to the Solicitor General.

Two amici, two days of argument

The National Journal is reporting (in a story behind a pay wall) that the Court has decided two procedural matters:

1. An amicus will indeed be appointed to argue that the Anti-Injunction Act (26 U.S.C. 7421) precludes jurisdiction in this case (at least with respect to the private plaintiffs), and that a second amicus will be appointed to defend the Eleventh Circuit's judgment on severability. Again, the Eleventh Circuit held that the minimum coverage provision was completely severable from the remainder of the ACA. None of the parties have advocated this position; even the United States argues that, if the mandate goes down, so too must the guaranteed issue and community rating provisions.

2. The arguments will be staged over two days. The Court will take up the Anti-Injunction Act and the constitutionality of the individual mandate on the first day, and the Medicaid question and severability on the second day.

These details were reportedly conveyed to the litigants on Monday. Official orders from the Court setting out these details, along with the names of the amici, should be forthcoming soon.

United States files notice of appeal in Goudy-Bachman

You can access the notice, filed in the United States District Court for the Middle District of Pennsylvania, here.

The Third Circuit will presumably wait to see what happens at the Supreme Court before doing anything substantive with this case.

United States files brief as appellee in Fifth Circuit

This is hardly the main event, but I thought I should note that the United States has filed its brief as appellee in Physician Hospitals of America v. Sebelius, the case currently before the Fifth Circuit. This case involves a challenge to the ACA's provider self-referral provisions. The government argues that the Fifth Circuit lacks jurisdiction over the plaintiffs' claims for two reasons: (1) the claims are "wholly unsubstantial," and (2) the plaintiffs "failed to bring their challenge in the manner prescribed by Congress."

You can access the United States's brief here. (And you can access the plaintiffs' previously filed brief as appellants here.)

The plaintiffs have until November 23 to file their reply brief. The Fifth Circuit has yet to set a date for oral argument.

Next steps for the Court

Yesterday was huge, of course, but there remain a number of outstanding procedural details that the Court will need to specify in the coming days or weeks. Here is a brief list for those interested:

1. Set an argument date (or dates): The Court releases argument calendars periodically over the course of the Term, as the number of granted cases fill the relevant calendar. Thus far, the Court has already conducted its October and November sittings, and it has released the calendars for December and January. Normally, the Court would not release its March calendar for another several weeks. But perhaps this case is different, given the number of people involved and the level of national interest. In all events, it is virtually certain this case will be scheduled for late March; argument in mid-April would give the justices precious little time to draft their opinions, respond to one another, etc., by the end of the term in June. Hearing argument in March gives them an additional month to write the opinions. Moreover, it seems quite likely that it will be scheduled over two days; five and a half hours is too long for even the most interested human being to maintain her concentration.

2. Set a briefing schedule: In a post yesterday, I sketched out the briefing schedule dictated by the default rules that apply if the Court does not specify otherwise. That calls for all of the topside briefs (to be filed by everyone, since they are all petitioners in one of the cases) to be filed during the week between Christmas and New Year's Day. That seems a little unfortunate. The Court has a little wiggle room -- about 10-14 days that it could extend the default dates and still have the case argued the week of March 26. So I'm guessing the Court might extend the dates by a week or so. Regardless, the Court is likely to solidify the briefing schedule -- either by issuing an order or denying a request for an extension -- relatively soon.

3. Perhaps appoint amicus to argue the AIA issue: This is not mandatory. The Court could hear argument on the question without any attorney actually contending that the AIA bars jurisdiction here. But the matter is complex enough that the justices might benefit from such an airing. (They will get the argument in an amicus brief regardless.) If the Court is to appoint someone to argue, it needs to be soon, so that person will be ready by March.

Perhaps there are some other housecleaning matters I have overlooked. But those seem to be the big ones at this point.