Tag Archives: ZZ: Virginia v. Sebelius

The Hill: The Supreme Court opened its consideration of President Obama’s healthcare law by aggressively questioning the idea the court can’t reach a decision on the healthcare mandate before it takes effect.

Washington Times: A curious thing about this week’s Supreme Court hearings on President Obama’s health care law is that while nobody doubts how the four Democrat-appointed justices will decide, there is no such certainty on how the Republican appointees will rule in the case, which will go a long way toward defining the scope and limits of government power in the 21st century.

USA Today: Seeking precedents for the law’s requirement that Americans buy health insurance, some constitutional scholars are reaching back 220 years to a law signed by George Washington: the Militia Act of 1792.

The HIll: The frenzy generated by the Supreme Court’s arguments on the healthcare reform law next week is likely to dwarf anything the court has ever seen.

Reuters: In all, some 136 amicus briefs have been filed with the high court in the Patient Protection and Affordable Care Act litigation.

Legal Times: Solicitor General Donald Verrilli’s swallowtail morning coat will get heavy use the week of March 26. The Justice Department has just confirmed that Verrilli will rise to argue in three of the four separate and historic arguments on the constitutionality of the Affordable Care Act later this month.

Bloomberg: Paul Clement is poised to make a deeper imprint on American law this year than anyone without the title “justice.”

The HBS Joint Program will focus upon two of the four arguments that the U.S. Supreme Court will hear:
Whether Congress has the power under Article I of the Constitution to enact the individual mandate provisions of ACA?
If the individual mandate is not constitutional, then to what extent can the mandate be severed from the rest of PPACA? Or, is it a necessary part of the law whose other provisions, especially the insurance reforms (such as prohibiting denial of coverage for pre-existing conditions), cannot stand on their own?

NCPA Policy Digest: States are lagging in the creation of health insurance exchanges, the supermarkets where millions of consumers are supposed to buy subsidized private coverage under President Obama’s health care overhaul, says the New York Times.

Ronald Rotunda at Fox News: So, the DOJ is simultaneously claiming that it completely walled off Kagan from any discussions involving the constitutional defense of ObamaCare, while admitting that Kagan was participating in emails discussing “legal issues, arguments, and strategy concerning” the anticipated ObamaCare litigation.

Politico: The Supreme Court on Monday denied a request for debate over whether Justice Elena Kagan should recuse herself from the health care reform case due to be argued in March.

Heritage Foundation Foundry Blog: An internal memorandum from the Office of the Solicitor General (OSG) reveals that Justice Elena Kagan “substantially participated” in a health care case in San Francisco in which the Justice Department argued over the effect of the Patient Protection and Affordable Care Act (PPACA). This raises grave new doubts about the appropriateness of Kagan’s participation as a justice in the Obamacare lawsuit scheduled to be heard by the Supreme Court in March.

POLITICO.com: Think the Supreme Court is where the future of President Barack Obama’s health care law will be settled? Think again. The real verdict on the future of Obama’s signature achievement will come in November . . .

The Hill: More than 480 state lawmakers plan to file a brief Thursday urging the Supreme Court to uphold President Obama’s healthcare law.

The Hill: The arguments in Friday’s brief are largely similar to the approach the Justice Department has taken in lower courts. The brief says the mandate is an acceptable use of Congress’s taxing power and also defends the policy under the Constitution’s commerce clause.

SCOTUSblog: The Obama Administration has filed the last key document in the constitutional cases in the Supreme Court on the new federal health care law, urging the Justices not to grant review of Virginia’s attempt to get back into the controversy. The Court, Solicitor General Donald B. Verrilli, Jr., suggested in a filing Thursday, should simply hold Virginia’s petition until after it rules on other pending cases that the government wants reviewed.

SCOTUSblog: The scattered schedule that lawyers have followed in filing appeals on the constitutionality of the new federal health care law has contributed to the creation of a puzzle for the Court to work out in deciding when, and how, to treat the cases. It now appears that, if the Court wants to wait and act on all six appeals that have now been filed, at the same time, it probably would not consider them until its Conference of December 9.

Religion Clause: In a little-noticed portion of his 73-page dissent, Judge Wynn rejected free exercise, RFRA and Establishment Clause challenges to the statute, saying . . .

The 4th Circuit Court of Appeals said Virginia Attorney General Ken Cuccinelli (R) does not have a legal right to sue over the law’s requirement that most people buy insurance. The court vacated a lower court’s ruling in the case and instructed the lower court to dismiss the suit.

ABC News: Although challenges to the Obama administration’s health care law are being heard across the country, two important appellate court rulings are expected this summer that could determine whether the issue eventually lands in front of the Supreme Court.

SCOTUSblog: The Obama Administration urges the Fourth Circuit Court to go ahead and decide the constitutionality of a key section of the new health reform law, rather than dismiss it under a federal tax law.

SCOTUS Blog: In two identical orders (here and here), the three-judge panel indicated it wanted to explore further how to treat the financial penalty that individuals would have to pay to the federal government if they did not obtain health coverage by 2014.

David Savage at the LA Times: By their comments and questions Tuesday, the judges signaled they were likely to uphold provisions in the law that require virtually all Americans to have health insurance by 2014 or pay a penalty.

A majority of Americans may strongly oppose the Obamacare law that allows abortion funding and presents rationing concerns, but the computers at the U.S. Court of Appeals for the Fourth Circuit apparently love the law.

Two lower-court judges in Virginia last year ruled in opposite ways:

How Appealing links to the audio in the two pending cases.

USA Today: The U.S. Court of Appeals for the 4th Circuit will consider two cases testing the sweeping law that requires people to buy health insurance by 2014 or face a tax penalty. In one of those two cases, a trial judge declared that mandate, the linchpin provision of the 2010 health-care law, unconstitutional. In the other case, a judge upheld it.

Liberty Counsel: Mat Staver will present oral argument at the federal court of appeals on Tuesday, May 10, 2011 at 9:30 am ET, challenging the constitutionality of the Patient Protection and Affordable Care Act, often referred to as “ObamaCare.” The case, Liberty University v. Geithner, will be heard at the United States Court of Appeals for the Fourth Circuit at 1000 East Main Street, Richmond, Virginia. Liberty Counsel represents Liberty University and two private individuals. On the same day, the court of appeals will also hear the case of Commonwealth of Virginia v. Sebelius

Choosing, for now, to remain on the sidelines of the national constitutional debate over the new health care law, the Supreme Court refused on Monday to put Virginia’s challenge to the law on a fast track with review by the Justices ahead of any appeals court decisions.

The Hill: “This could mean that a justice is writing a dissent from the denial; or that a justice is writing a statement respecting denial; or that a potential fourth justice to grant is unsure and needs more time; or even that the Court is unsure whether to deny or dismiss the petition (for lack of jurisdiction),” writes Brad Joondeph of the ACA Litigation Blog, which tracks healthcare reform challenges.

Bloomberg: Ken Cuccinelli, the Virginia attorney general challenging President Barack Obama’s health- care overhaul, is quick to agree that his request for fast-track review by the U.S. Supreme Court is a long shot.

SCOTUS Blog’s updated list of Petitions to Watch is here.

Washington Post: The state’s challenge of the nation’s health care law should bypass an appellate court and go directly to the Supreme Court because of the “crippling uncertainty” a delay imposes upon the states, Virginia’s attorney general argues in a filing to justices.

SCOTUS Blog: “The Obama Administration urges the Court to turn down Virginia’s request to take up swiftly, before an appeals court rules on it, the constitutionality of the new health care law.”

SCOTUS Blog: “The Obama Administration formally starts an appeal to challenge a Florida federal judge’s ruling striking down all of the new health care law. Enforcement of the law can continue.”

SCOTUS Blog: “Virginia asks the Court to gather up all of the health care law’s challenges from the federal appeals courts, and decide all of them in one omnibus proceeding dealing with every issue. The constitutional controversy has mired the nation in uncertainty, the state argues.”

James Taranto writes at the Wall Street Journal: Akhil Reed Amar of Yale, in the Los Angeles Times, and Laurence Tribe of Harvard, in the New York Times. Both profs claim ObamaCare is constitutional . . . Rather than grapple with a novel legal issue in a serious scholarly way, it’s as if they stick their fingers in their ears and sing “Law law law law law.”

SCOTUS Blog: “Virginia asks the Court to gather up all of the health care law’s challenges from the federal appeals courts, and decide all of them in one omnibus proceeding dealing with every issue. The constitutional controversy has mired the nation in uncertainty, the state argues.”

SCOTUS Blog: Out of Court, Justice Ginsburg suggests that Virginia will not be allowed to pursue an immediate appeal to challenge the new federal health care law.

SCOTUS Blog: “Virginia’s attorney general announced Thursday that he will ask the Supreme Court to rule on the constitutionality of the new federal health care law, without waiting for federal appeals courts to do so. The Justice Department is likely to oppose the move.”

BusinessWeek: “The U.S. asked a federal appeals court to overturn a Virginia judge’s ruling that the Obama administration’s health-care overhaul is unconstitutional because it requires some Americans to buy insurance.”

Pam Bondi, Attorney General of Florida, writing in the Wall Street Journal: “As new state attorneys general take office in the coming week, I fully expect an increase in the ranks of the states fighting ObamaCare in court. Our lawsuit, together with a similar lawsuit filed by Virginia’s attorney general, has exposed the health-care law’s threat to individual liberty and to the constitutional structure that the Founders designed as a means of protecting that liberty.”

New York Times: “The legal challenge to the Obama health care act has invigorated a dispute as old as the Constitution about the framers’ most nettlesome grant of power, which gives Congress treacherously broad authority to pass laws ‘necessary and proper’ to carrying out its assigned responsibilities.”

SCOTUSblog: “Virginia officials, disappointed that the Justice Department is not moving for prompt Supreme Court review of the health care mandate’s constitutionality, are considering their own attempt. Attorney General Kenneth Cuccinelli, in an op-ed column in Friday’s Washington Post, made a new plea for bypassing a federal appeals court, saying that ‘simply too much is at stake.’ Cuccinelli’s aides have said that officials are leaning toward asking the Justices to take the case on without awaiting appeals court review, but have not yet decided.”

John Schwartz writing in the New York Times: “Professor Freedman of Hofstra noted that even if the justices were reluctant to accept the government’s primary argument that inactivity can be controlled under the Commerce Clause, there are other grounds for finding the health care law constitutional. The most attractive to the court, he suggested, might be categorizing the fine for not buying health care as a tax. He noted that a while only a handful of cases had restricted the power of Congress, under the Commerce Clause, the power to tax has almost always been upheld.”

Ken Connor writing at The Christian Post: “Perhaps to the chagrin of some conservatives who would have relished an ideologically-driven, politically-charged decision (and despite the wild accusations among some on the far left that this decision signals the first step towards a judicial imposition of a ‘libertarian utopia’), Judge Hudson doesn’t second guess or venture an opinion about the wisdom or merits of the legislation. His analysis is a constitutional one, not a political or sociological one, and the question he considered is simple: Does the Constitution confer on the Congress the power to penalize individuals for not purchasing a particular good or service in the marketplace?”

SCOTUSblog: “The Justice Department, disagreeing with a strategy preferred by the state of Virginia, plans to go to a federal appeals court rather than directly to the Supreme Court when it appeals a federal judge’s ruling Monday against the new health insurance mandate.”

“With a loose web of conservative plaintiffs leading the charge, and judicial rulings breaking thus far along ideological lines, the drive to scuttle the Obama health care law is once again highlighting the role of partisanship in America’s courts.”

CNSNews: “Virginia Attorney General Ken Cuccinelli told CNSNews.com that the federal government will be able to ‘order’ individuals to purchase any product or service if the individual mandate in health care law is determined to be constitutional by the Supreme Court.”

Randy Barnett writing at The Volokh Conspiracy: “The ‘necessary’ prong of the Necessary & Proper Clause is already being limited by a judicially administrable doctrine: the economic-noneconomic distinction. To execute its commerce power under the existing Necessary & Proper Clause doctrine, Congress may only reach intrastate economic activity that substantially affects interstate commerce. According to this settled doctrine, however ‘necessary’ it might otherwise be, it cannot reach intrastate noneconomic activity . . . ”

The How Appealing roundup is here.

Washington Post: “Virginia’s go-it-alone legal strategy to challenge the nation’s sweeping federal health-care overhaul – once questioned by both advocates and some opponents of the law – seems to be paying off for state Attorney General Ken T. Cuccinelli II after Monday’s court ruling, in his favor, that a key provision of the law is unconstitutional.”

The Hill: “The Department of Justice announced Tuesday afternoon it will appeal a district court ruling that a key part of the new healthcare reform law is unconstitutional . . . The administration will appeal the district court ruling to the Fourth Circuit Court of Appeals.”

SCOTUSblog: “A federal judge in Richmond, Va., ruled Monday that Congress had no authority under the Constitution to require that nearly every American obtain health insurance by the year 2014 — a crucial part of the health care package promoted by President Obama. U.S. District Judge Henry E. Hudson, in a 42-page ruling, declared that ‘an individual’s personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of the Commerce Clause.’”

Heritage Foundation: “The White House and their leftist allies were quick to try and minimize this body blow to Obamacare, arguing that 14 previous court challenges have been dismissed by the courts. This desperate spin doesn’t even pass the laugh test . . . But whether or not courts will invalidate just Obamacare’s individual mandate is rapidly becoming irrelevant. Obamacare simply may not survive that long. It is already collapsing under its own financial and bureaucratic weight.”

Jonathan Adler writes at the Volokh Conspiracy: “Many critics of Judge Hudson’s opinion in Virginia v. Sebelius have shorted his discussion of the Necessary and Proper Clause. (Even some of us who support the opinion have accepted this critique.) But Brooklyn Law’s Jason Mazzone suggests Judge Hudson’s critics are misreading his opinion, which was written more for Justice Scalia than legal academics.”

The McPherson Sentinel: “‘Congress showed blatant disregard for the Constitution, and that’s the pivotal issue here,’ said Alliance Defense Fund Senior Counsel [Steven H. Aden]. ADF is a legal alliance founded in 1993 by more than 30 Christian leaders.”

Christian Post: “Attorneys from religious freedom legal group Alliance Defense Fund applauded the ruling. ‘No one should be forced to pay for an unconstitutional federal takeover of health care that will funnel taxpayer dollars into the pockets of abortionists,’ said ADF senior counsel [Steven Aden].”

LifeNews: “Senior Counsel [Steven H. Aden] of the pro-life legal group Alliance Defense Fund, also weighed in on the decision. ‘No one should be forced to pay for an unconstitutional federal takeover of health care that will funnel taxpayer dollars into the pockets of abortionists and lead inevitably toward death panels for the elderly and infirm. Congress showed blatant disregard for the Constitution, and that’s the pivotal issue here,’ he told LifeNews.com.”

WorldNetDaily: “‘No one should be forced to pay for an unconstitutional federal takeover of health care that will funnel taxpayer dollars into the pockets of abortionists and lead inevitably toward death panels for the elderly and infirm. Congress showed blatant disregard for the Constitution, and that’s the pivotal issue here,’ said Alliance Defense Fund Senior Counsel [Steven H. Aden].”

New York Times: “The novel question before the courts is whether the government can require citizens to buy a commercial product like health insurance. Because the Supreme Court has said the commerce clause of the Constitution allows Congress to regulate ‘activities that substantially affect interstate commerce,’ the judges must decide whether the failure to obtain insurance can be defined as an ‘activity.’”

LifeNews: “A federal judge held a court hearing on Monday in the third lawsuit filed against the ObamaCare health care reform bill that contains abortion funding and has been described by pro-life groups as the largest expansion of abortion since Roe v. Wade.”

Conn Carroll writing at The Heritage Foundation / The Foundry: “In the first substantive legal ruling on President Barack Obama’s health regulation law, U.S. District Court Judge Henry Hudson held that the Commonwealth of Virginia raised a valid substantive theory to challenge Obamacare and that its democratically passed Virginia Health Care Freedom Act provided it standing to challenge the federal individual mandate. On the issue of that mandate, Hudson wrote: ‘Unquestionably, this regulation radically changes the landscape of health insurance coverage in America . . . No reported case from any federal appellate court has extended the Commerce Clause or the Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.’”

Ilya Somin writing at The Volokh Conspiracy: “Federal District Judge Henry Hudson’s opinion refusing to dismiss Virginia’s lawsuit challenging the constitutionality of the Obama health care plan has several interesting aspects. The suit focuses primarily on a challenge to the ‘individual mandate’ element of the plan, which requires most American citizens and legal residents to purchase a government-approved health insurance plan by 2014 or pay a fine for nocompliance. Here are a few of the most important points covered in the opinion.”

Associated Press: “Virginia’s lawsuit challenging the Obama administration’s health care reform law cleared its first legal hurdle Monday as a federal judge ruled the law raises a host of complex constitutional issues.”