Yesterday, November 8, the United States Court of Appeals for the District of Columbia became the second federal court of appeals to uphold the constitutionality of the minimum coverage requirement of the Affordable Care Act.
To date, one federal appellate court has held the minimum coverage requirement to be unconstitutional (although severable from the remainder of the ACA), while five other appellate court decisions have held that the courts lacked jurisdiction to consider the challenge brought to them, either because the plaintiffs in the particular case had not been injured by the minimum coverage requirement or because a federal statute, the Anti-Injunction Act, denies jurisdiction.
This is a very important decision. Judge Laurence Silberman, who wrote the majority opinion upholding the statute, is a highly-respected conservative judge, appointed by President Reagan. Judge Harry T. Edwards, a Carter appointee, joined Judge Silberman in the majority. Judge Brett M. Kavanaugh, another well known conservative judge appointed by George W. Bush, dissented in an opinion that was much longer than the majority opinion, but on jurisdictional grounds rather than on the merits. Kavanaugh would have held, as the Fourth Circuit did in the Liberty University case, that the Anti-Injunction Act deprives the federal courts of jurisdiction. In the course of his lengthy opinion, Judge Kavanaugh suggests that there may be prudential as well as legal reasons why the courts may want to stay out of this fight, and suggests that if there is in fact a constitutional defect with the ACA (which he does not decide), it could be easily fixed by Congress.
This decision comes down two days before the Supreme Court will consider, and quite possibly decide, whether or not to take certiorari in one or more of four other appellate court cases that have been decided in ACA challenges. Although a grant of certiorari is almost certain at this point, the D.C. Circuit’s decision, as well as the earlier opinion of Judge Jeffrey Sutton, another prominent conservative who sided with the constitutionality of the ACA in a Sixth Circuit case, will certainly be noted by the Supreme Court justices. Moreover, the media narrative that seemed to explain the district court opinions—Republican appointees strike down the law while Democratic appointees uphold it—seems again not to work for appellate court judges. It may not work for predicting the Supreme Court vote either.
Wednesday, September 28 was a busy day at the Supreme Court clerk’s office.
It had been widely expected that there would be a major pleading filed with the clerk in an Affordable Care Act challenge, as the response of the United States to a certiorari petition in the Sixth Circuit’s Thomas More case, which had upheld the ACA as constitutional, was due. A cert. petition asks the Supreme Court to exercise its discretion to review the decision of a lower court, and the losing plaintiffs in Thomas More had requested the Supreme Court to reverse that decision and find that Congress had no authority under the Commerce Clause of the Constitution to adopt the ACA’s minimum coverage requirement.
The Justice Department did file a response in that case, but very late in the day. Earlier in the day, to the surprise of most observers, three certiorari petitions were filed, asking the Court to review thedecision of the Eleventh Circuit Court of Appeals in the Florida case, which had held the minimum coverage requirement to be unconstitutional. The Eleventh Circuit upheld several other rulings of the lower court finding other parts of the ACA to be constitutional, and had reversed the decision of the lower court striking down the entire ACA as being not “severable” from the minimum coverage requirement.
Late in the morning on the 28th, the National Federation of Independent Business and two individuals, plaintiffs in the Eleventh Circuit case filed a cert. petition, asking the Supreme Court to reverse the decision of the Eleventh Circuit refusing to hold the entire ACA to be unconstitutional. An hour or so later, the twenty-six states that are plaintiffs in the Eleventh Circuit case filed their own cert. petition asking the Court to strike down the entire ACA, but also asking the court to reverse the appellate court’s decision upholding the constitutionality of the ACA’s Medicaid expansions and of the employer mandate as applied to the states.
For a lawyer, the argument of Florida v. the Department of Health and Human Services before a three judge panel of the Eleventh Circuit Federal Court of Appeals on Wednesday, June 8, was a beauty to behold. (For a non-lawyer it was probably tedious, repetitive, and much too long). Three active and very well-prepared judges spent two and a half hours grilling three very talented lawyers about intricacies of health policy and constitutional law, rarely allowing the lawyers time to finish a thought before interrupting with yet another question.
This is arguably the most important of the many Affordable Care Act (ACA) challenges currently pending in the courts. The plaintiffs include over half of the states, as well as the National Federation of Independent Businesses (NFIB) and two individual plaintiffs. It is one of only two cases in which a part of the ACA has been held unconstitutional (out of over thirty cases that have been filed), and it is the only case in which the lower court struck down the entire statute as unconstitutional. Thirty-six amicus briefs were submitted to the appellate court, including briefs filed by professional and provider organizations, members of Congress, states and state legislators (on both sides), Nobel Prize winning economists, law professors, disease and consumer organizations, and just about every conservative advocacy group in the country.
The attorneys. The importance of the case is underlined by the fact that the federal government was represented by Acting Solicitor General Neal Katyal, while the states were represented by Paul Clement, Solicitor General under the Bush administration, perhaps the first time two solicitor generals have squared off against each other in a court of appeals argument. (The NFIB was represented by a third well-known lawyer, Michael Carvin).