Now that the Fourth Circuit panel that heard oral argument in Virginia v. Sebelius and Liberty University v. Geithner has disposed of the other two appeals heard that same morning, one can use the panel’s actions in those cases to speculate about the authorship of the opinions in the two challenges to the individual mandate. My best guess is that Judge Motz was assigned to author the principal opinion in Liberty University v. Geithner and that Judge Davis was assigned to author the principal opinion in Virginia v. Sebelius. This is all speculative, of course, but there is a long and glorious tradition of speculating about opinion authorship in appellate cases.
Opinion authorship in the Fourth Circuit is assigned by the Chief Judge at the end of each week of oral arguments. The assignments are based on recommendations made by the presiding judge of each panel, recommendations that are generally followed by the Chief Judge. The presiding judge consults with the other judges on the panel to accommodate their preferences and ensure a balanced distribution of the panel’s work.
Because the Fourth Circuit panel that heard the two challenges to the individual mandate easily disposed of one of the other two with a short order enforcing a waiver of the right to appeal, it would have been clear in making the assignments that there were three principal opinions to distribute among the three judges. With Judge Wynn having authored the opinion in United States v. Dietz, that leaves Judge Motz and Judge Davis for the two challenges to the individual mandate.
When two appeals presenting similar issues are argued seriatim, as were Virginia v. Sebelius and Liberty University v. Geithner, there is sometimes reason to assign both cases to the same judge. If one opinion is enough to set forth reasoning that disposes of both cases, the judge can write one, longer opinion setting forth that reasoning, and then write a short opinion deciding the second case on the basis of the fully reasoned decision. But this arrangement makes less sense when the panel decides the two cases presenting similar issues on different grounds. When that happens, it makes more sense to distribute the work.
Oral argument in Liberty University v. Geithner focused on the merits of the constitutional challenge to the individual mandate, while oral argument in Virginia v. Sebelius focused on jurisdictional questions about Virginia’s right to challenge the individual mandate. The panel seemed largely receptive to the federal government’s argument that the district court lacked jurisdiction over Virginia’s lawsuit. Whether the panel ultimately decides on that basis, it appeared from argument that, at the very least, Virginia v. Sebelius presented non-trivial jurisdictional issues that would need to be addressed in that case but not in Liberty University v. Geithner. For that reason, it is likely that the principal opinions in each of the cases were assigned to different judges.
Thus far, every appellate judge to have ruled on the merits of a constitutional challenge to the individual mandate has authored an opinion about the merits. There were three opinions in the Sixth Circuit case of Thomas More Law Center v. Obama, one by each judge. And while there were (only?) two opinions in the Eleventh Circuit case of Florida v. HHS, one of those was jointly authored. If the Fourth Circuit judges are anything like their colleagues on the Sixth and Eleventh Circuits, each of them will write something about the mandate. Because Judge Motz was the presiding judge, and because Liberty University v. Geithner presents the most straightforward case for reaching the merits of the constitutional challenges, my guess is that Judge Motz claimed this opinion.
Judge Motz is the author of two important Fourth Circuit opinions on the reach of Congress’s powers under Article 1, Section 8. She authored a panel opinion on the Necessary and Proper Clause in United States v. Comstock (later overturned by the Supreme Court) and the majority opinion in Bronzkala v. Virginia Polytechnic Institute, 132 F.3d 949 (4th Cir. 1997). Judge Motz’s opinion in Bronzkala was overturned by an en banc decision, Bronzkala v. Virginia Polytechnic Institute, 169 F.3d 820 (4th Cir. 1999) (en banc), which in turn was affirmed by the Supreme Court in United States v. Morrison, 529 U.S. 598 (2000).
If Judge Motz is writing the principal opinion in Liberty University v. Geithner, that leaves Judge Davis as the potential author of the principal opinion in Virginia v. Sebelius. While it is dangerous to layer speculation upon speculation, it does not bode well for Virginia on the jurisdictional question if these guesses are right. Judge Davis was the most skeptical at oral argument about Virginia’s standing to sue on the basis of its state Health Care Freedom Act. By contrast, Judge Wynn was the most persistent questioner of the federal government’s lawyer on this issue.
(Disclosure: I filed an amicus curiae brief urging dismissal of Virginia v. Sebelius for lack of jurisdiction.)