Archive for September, 2011

This thoughtful essay by William Baude in The Wilson Quarterly is eminently worth reading.

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The Richmond Times-Dispatch ran a story today under the headline “Technicality imperils prosecutor’s re-election bid.” According to the story: Richmond County Commonwealth’s Attorney Wayne L. Emery will not appear on the ballot for the election because his petitions to qualify as a candidate have been disqualified for failure to conform to State Board of Elections regulations. According to the Board, the petitions are invalid because each petition filed by Emery consisted of two pages stapled together rather than double-sided, two-page, back-and-front petitions.

There are more important details to the story, which you can read by clicking through the link above. But I’ve given you the gist of it. [IMPORTANT UPDATE: To understand the issues, it is essential to read the additional facts set forth in the comment by Andrew McRoberts below. Those additional facts change both the complexion of the story and the legal analysis.]

According to Andrew McRoberts, the attorney who represented the Richmond County registrar and the Board in legal proceedings related to Emery’s petition, “[t]he electoral board is certainly disappointed that this has happened. Obviously, Richmond County does not want to be a test case for anyone’s regulation.”

Mr. McRoberts certainly knows much more about election law and local government law than I do. But I do know how to read statutes and regulations, so I thought I would take a look at the relevant legal materials to see if the Board truly was required to act in a way that led it to be “disappointed” with the ultimate result.

There is enough in there to lead me to question the Board’s interpretation. To be clear, I do not suggest that I have the right answer or that the Board necessarily reached the wrong answer. But it appears there is enough to raise a question.


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Virginia filed a federal lawsuit challenging a federal statute as unconstitutional and seeking to vindicate a state statute. It takes a special perspective for someone to view that federal-court filing as some type of indicator that the Commonwealth may have forgotten that the Civil War is over. Linda Greenhouse appears to have that special perspective, as her most recent Opinionator column reveals. (By the way, does the New York Times have a macro such that any story it runs on the Fourth Circuit must contain something about how the court sits “in the heart of the old Confederacy”?)

My problem is not with the substance of Greenhouse’s claim that Virginia lacked standing to sue the federal government. My problem is with the framing and tone.  Reading Greenhouse’s column reminded me of reading portions of Justice Kennedy’s opinion in Gonzales v. Carhart, 550 U.S. 124 (2007). In these writings of Greenhouse and Kennedy, quasi-constitutional moralism not only distracts from the soundness of the underlying constitutional determination, but also provides unnecessary fodder for disagreement.

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Ariane DeVogue of ABC News reports from today’s oral arguments in the D.C. Circuit that Judge Kavanaugh asked a series of questions that may indicate his belief that the federal tax Anti-Injunction Act bars the plaintiffs’ pre-enforcement challenge to the individual mandate. Judge Kavanaugh worked on Ken Starr’s investigation of Bill Clinton and served in high-level positions in George W. Bush’s White House. If he concludes that the AIA bars the challenge, it will be difficult to attribute that conclusion to some sort of left-leaning tendencies in his jurisprudence.

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One of the top stories currently running at The American Spectator is “Obamacare’s Last Best Hope”, by David Catron. The bio describes Mr. Catron as a “health care revenue cycle expert” who blogs at Health Care BS (which is devoted to “cleaning the Augean stables of the health care debate”). Mr. Catron may know much more about health care finance than I do, but he is confused about the federal tax Anti-Injunction Act (“AIA”) and why one might be willing to conclude that it blocks pre-enforcement challenges to the individual mandate.

Let’s begin with the paragraph that drew my attention:

Some left-leaning legal scholars see a ray of hope in the Liberty v. Geithner ruling because Judge Diana Motz, the Clinton appointee who resurrected the tax issue, invoked the Anti-Injunction Act (AIA). AIA forbids legal challenges to taxes before they go into effect and the IRS has tried to collect them. Because the mandate doesn’t take effect until 2014, experts sympathetic to “reform” hope this new perspective will cause the Supreme Court to put off its encounter with ObamaCare. According to Kevin C. Walsh, who teaches law at the University of Richmond, “[T]he Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate.” And, considering the denunciations to which the Court was subjected pursuant to Bush v. Gore, the justices may indeed be reluctant to join the judicial fray in 2012.

It’s peculiar that I am the only “legal scholar” mentioned in this paragraph about “left-leaning legal scholars” who are “sympathetic to ‘reform'” and hope that the AIA “will cause the Supreme Court to put off its encounter with ObamaCare.” I will leave to others to judge whether I am “a left-leaning legal scholar.” I think it’s safe to say, however, that Mr. Catron’s sole reason for tagging me as such is because I think the Fourth Circuit got the AIA question right in Liberty University v. Geithner. For better or worse, Mr. Catron can infer whatever he likes from my view on this jurisdictional question. But he should at least get that view right. The post of mine that he links in his piece advocates congressional action to lift the AIA bar for these challenges. That’s not the kind of move one advocates while simultaneously hoping that the Supreme Court will “put off its encounter with ObamaCare.” As I explained in that same post (which Mr. Catron apparently has not read): “A legislative fix to the Tax Anti-Injunction Act can eliminate a jurisdictional barrier that presents a serious possibility of causing extensive delay. Congress can and should get rid of that barrier and clear the way to prompt Supreme Court resolution of the constitutional challenges to the individual mandate.”

Mr. Catron concludes by observing that the Department of Justice ” must make the case that, the President’s prevarications notwithstanding, the mandate is indeed a tax. If they can get over that bar, plus make the sale on Judge Motz’ AIA theory, there is a chance that ObamaCare and its mandate will survive — until November 6, 2012.” This analysis confuses two issues: (1) whether the mandate is a tax under the Constitution; and (2) whether a challenge to the mandate is barred by the federal tax Anti-Injunction Act. It may be counter-intuitive to treat these as two different issues, but sometimes the law is counter-intuitive. And on this point, the law is clear. The AIA can bar a pre-enforcement challenge to the mandate even if the monetary exaction for non-compliance is a “penalty” rather than a “tax” under the Constitution.

Rather than speculating about political or ideological leanings, Mr. Catron may wish to get straight on the law and consider the possibility that some of us who think that the Fourth Circuit was right about the AIA hold that view because a close look at the relevant legal authorities suggests as much. An analysis along those lines wouldn’t make for good copy or allow one to suggest that the President is a liar, but it may actually be true and help people understand the issues.

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The Fourth Circuit issued four published opinions yesterday.

Three of the opinions were from a single panel, consisting of Judge Niemeyer, Judge King, and Judge Shedd. This panel heard arguments in the appeals almost 11 months ago (October 26, 2010). All three appeals involve claims that arose in some way in out of activities of U.S. contractors in Iraq. Two cases involved claims by Iraqis against U.S. contractors, and one was a claim by a United States Marine against contractor Kellogg, Brown, and Root. In each case, the Fourth Circuit held that the claimants are barred from recovering. (AP story on the Iraqi citizen suits here.)

In Al Shimari v. CACI International, the court held that state law tort claims brought by four Iraqi citizens against a U.S. contractor for damages from torture and abuse at Abu Ghraib are preempted by federal law. The court ruled similarly in Al-Quraishi v. L-3 Services, Incorporated, remanding with instructions to dismiss the claims of 72 Iraqis against a U.S. contractor for damages from torture and abuse at various detention sites in the Iraq war zone. In both cases, Judge Niemeyer wrote the majority opinion, which Judge Shedd joined. Judge King dissented, arguing that the court lacked jurisdiction under the collateral order doctrine, and that, if the court did have jurisdiction, it should have ruled that the claims were not preempted. The opinions in Al Shimari focus more on the preemption arguments, while the opinions in Al-Quraishi devote more attention to the appellate jurisdiction arguments. In Al Shimari, Judge Niemeyer wrote not only an opinion for the panel majority, but also a separate solo opinion “giving additional reasons for reversing and remanding.” Judge Niemeyer argued in this opinion that the plaintiffs’ claims were not only preempted, but also barred by the political question doctrine and derivative absolute immunity.

The third decision from this panel was Taylor v. Kellogg Brown & Root Services, Incorporated. The court held that the negligence claim of a Marine against contractor KBR was barred by the political question doctrine and that the claim was also preempted. The path to these alternative holdings is an unusual one. The header for the opinion (if that’s the right term, not sure) describes the voting breakdown as follows: “Affirmed in part and vacated in part by published opinion. Judge King wrote the opinion, in which Judge Niemeyer joined. Judge Niemeyer wrote a concurring opinion. Judge Shedd wrote an opinion concurring in the judgment, in which Judge Niemeyer joined.” This description seems slightly off. Because Judge Niemeyer joined the opinions by Judge King and Judge Shedd, both of those opinions express the opinion of the court.

The fourth published opinion issued by the Fourth Circuit yesterday was United States v. Blair. The court unanimously affirmed convictions for money laundering, but by a 2-1 vote reversed a conviction for obstruction of justice. The panel consisted of Chief Judge Traxler, Judge Wilkinson, and Judge Wynn. The unanimous portions of the opinion were per curiam. Judge Wilkinson authored the portion of the opinion addressing obstruction of justice; Judge Wynn joined in that section, while Chief Judge Traxler dissented from it.

The opinions in all four of these appeals deserve more attention, which I hope to give them in later posts.

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The United States Court of Appeals for the Fourth Circuit heard arguments this morning in the second of two pirate prosecutions in federal court in Norfolk, Virginia. The first appeal, which the court heard in the spring, has been held up on a procedural issue and is being stayed pending the decision of today’s consolidated appeals. This second appeal–United States v. Abdi Dire (the lead case, together for argument with four other appeals)–was the second argued this morning in the Red Courtroom on the fourth floor of the Lewis F. Powell, Jr. Courthouse in Richmond. These appeals arise out of the convictions, after trial, of five Somali pirates for their attack on the U.S.S. Nicholas (preview post here). (UPDATE: For an AP write-up of the argument, see here.)

The panel that heard arguments was the same panel that heard arguments in the appeal arising out of the U.S.S. Ashland prosecution: Judge King, Judge Davis, and Judge Keenan.

Appellants divided their argument among three lawyers, each of whom addressed a distinct issue: whether the facts proven amounted to piracy under the law of nations; whether certain statements made by the captured pirates should be suppressed; and whether three 924(c) counts should be merged for sentencing.


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If all goes as planned, I will be in the Red Courtroom tomorrow morning in the Lewis F. Powell, Jr. Courthouse to see oral arguments in United States v. Abdi Dire. The appeal will focus on various issues arising out of the prosecution of Somali pirates for their attack on the U.S.S. Nicholas. (News accounts of the prosecution here and here.)

Last spring, I attended arguments in the appeal arising out of the prosecution for a pirate attack on the U.S.S. Ashland. The panel ran into some procedural issues that prevented it from reaching the central question about the scope of the piracy prohibition. I believe the Fourth Circuit is still holding that appeal, presumably pending the disposition of the appeal being argued tomorrow.

(For an earlier discussion of the two cases, see this post by David Glazier at Opinio Juris.)

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The Fourth Circuit affirmed the dismissal of claims brought by individuals of Kurdish descent against a chemical manufacturer who sold a component of the mustard gas used by Iraq. The plaintiffs were either victims of Iraqi mustard gas attacks or family members of victims. The defendant was a corporation that sold thiodiglycol (or “TDG”) in transactions that allegedly resulted in the TDG being used by Iraq to make mustard gas.

The court held unanimously in Aziz v. Alcolac, Inc. that (1) the Torture Victims Protection Act does not provide a cause of action against corporations, that (2) (a) the Alien Tort Statute does allow for aiding and abetting liability, but (b) only for conduct that is purposeful, and that (3) the plaintiffs in this case failed to plead facts sufficient to support the intent element. The court declined to address the contention–apparently first raised on appeal–that corporations cannot be sued under the ATS (an issue that has split the Second and D.C. Circuits).

Judge Diaz wrote the opinion, which Judge Motz and Senior Judge Hamilton joined.

According to Judge Diaz’s opinion, the Fourth Circuit’s holding under the TVPA widens a pre-existing circuit split. This is not an area in which I have expertise, but the Fourth Circuit’s holding seems to be on the correct side of the split.

In addition to those with a specific interest in the TVPA and the ATS, the opinion is likely to be of more general interest for its discussion of what sources to look to in ascertaining the content of the law of nations. With respect to the mens rea standard for aiding and abetting liability, the Fourth Circuit treats the Rome Statute as more authoritative than the decisions of ICTY and ICTR tribunals. This aspect of its decision marks a conscious methodological departure from a previous analysis offered by the D.C. Circuit in Doe VIII v. Exxon Mobil Corp

(For earlier coverage of the Doe VIII holding on corporate liability under the ATS, see this post by Jonathan Adler at Volokh Conspiracy.)

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Eugene Volokh reports that Georgetown Law’s Nicholas Rosenkranz will be guest-blogging on the Volokh Conspiracy about The Subjects of the Constitution and The Objects of the Constitution, two articles by Rosenkranz that appear in the Stanford Law Review.

I admire the ambition of these articles, which are more ambitious than anything I’ve attempted to date. But I have some pretty fundamental disagreements with their substance. While I’ve been meaning to think through some of these disagreements in a careful scholarly analysis, I have not had a chance to turn to that yet. Accordingly, I look forward to Rosenkranz’s posts. Perhaps the posts will dispel some of my concerns. If not, I suspect they will help me to understand our differences better. 

The constitutional challenges to the individual mandate in the Affordable Care Act seem as good a place as any to figure out how a theory of judicial review cashes out. One question that I will have in mind as I read the posts and comments will be this: What does Rosenkranz’s theory of judicial review say about the who, what, and when of challenging the individual mandate in federal court? 

This admittedly compound question has three parts that focus on three different aspects of judicial review: “Who” relates to standing; “what” relates to substance; and “when” relates to timing. 

An aggressive reading of Rosenkranz’s articles indicates that the best combined answer is: (1) anyone subject to any aspect of the Affordable Care Act; (2) can challenge the individual mandate; (3) immediately upon enactment of the Affordable Care Act into law.

If this combination of answers is right under Rosenkranz’s theory, then Rosenkranz’s theory must be wrong. Or so I believe at present. 

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It is to be expected that those on the losing end of the Fourth Circuit’s unanimous dismissal of Virginia’s challenge to the individual mandate have criticized the opinion in Virginia v. Sebelius.

There is nothing to criticize about engaging in such criticism. One of the most beneficial functions that lawyers and others can serve is to criticize judicial opinions. These opinions do not come down from Mt. Olympus but from fallible human beings like you and I.

The surprising aspect of the criticism is its focal point, which is Judge Motz’s renunciation of a theory that would enable a state to become a “roving constitutional watchdog” litigating generalized grievances in federal court.


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When the Fourth Circuit released its opinions in Virginia v. Sebelius and Liberty University v. Geithner on September 8, the opinions were in manuscript form (i.e., double-spaced, Courier). Today, the Fourth Circuit has released the opinions in the normal format for published opinions in the Fourth Circuit (here for Virginia v. Sebelius and here for Liberty University v. Geithner). Why the lag? Because it takes time to format these opinions, and the public is better off having them in manuscript form rather than waiting for all the formatting. That formatting took an extra-long time in these cases given the number of amici curiae. To get a sense of how different these cases were, a typical Fourth Circuit opinion will begin near the bottom of the first page or the top of the second page (depending on how much room the caption and other descriptive information takes up). By contrast, the text of Judge Motz’s opinion for the panel in Virginia v. Sebelius does not begin until page 41.

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A split Fourth Circuit panel issued a ruling today that applies the statutory religious organization exemption in Title VII, 42 U.S.C. § 2000e-1(a), to insulate a Catholic nursing home from claims religious harassment, retaliatory discharge, and  discriminatory discharge on the basis of religion. Judge Shedd wrote the opinion for the majority in Kennedy v. St. Joseph’s Ministries, Inc. Judge Wynn joined the opinion. Judge King wrote a dissenting opinion.

The panel opinion looks like a straightforward application of relatively clear statutory language. Apart from its importance as an interpretation of the religious organization exemption, the panel opinion may be of interest to proceduralists for the debate between the panel majority and the dissent over the propriety of deciding this issue on interlocutory appeal under 28 U.S.C. § 1292(b).

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This post continues consideration of the alternative state standing theories advanced in Florida v. HHS but not yet ruled on by any federal court. An earlier post addressed the states’ lead standing theory, which is based on expenditures expected to result from the choices of some individuals to comply with the mandate by enrolling in Medicaid.

The States’ second standing theory relies on the asserted inseverability of the individual mandate from other statutory provisions that directly affect the States. Their Eleventh Circuit brief argues:

[T]he States have standing because they have alleged that the  individual mandate renders the entire Act invalid on non-severability grounds. The  States have standing to raise that argument so long as they allege that any of the  Act‘s provisions causes them injury in fact, as such injury would be remedied by a  declaration that the Act is invalid. See Brock, 480 U.S. at 684 (adjudicating claim that entire statute was invalid as a result of unconstitutional legislative veto  provision, where plaintiffs alleged injury based on other portions of the statute). The States have plainly demonstrated injury in fact caused by the Medicaid and employer mandate reforms, and therefore have standing to seek invalidation of the Act on the ground that the individual mandate is unconstitutional.

In short, the States attempt to use inseverability to leverage their standing to challenge a part of the Act that does apply to them into standing to challenge a part that does not.

I have argued in my Eleventh Circuit amicus curiae brief and in my draft law review essay that this attempted use of inseverability doctrine is unprecedented and impermissible. I will not repeat those arguments word for word here, but instead set forth some of the key moves in the analysis.


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From Pope Benedict XVI’s address at Regensburg:

In all honesty, one must observe that in the late Middle Ages we find trends in theology which would sunder this synthesis between the Greek spirit and the Christian spirit. In contrast with the so-called intellectualism of Augustine and Thomas, there arose with Duns Scotus a voluntarism which, in its later developments, led to the claim that we can only know God’s voluntas ordinata. Beyond this is the realm of God’s freedom, in virtue of which he could have done the opposite of everything he has actually done. This gives rise to positions which clearly approach those of Ibn Hazm and might even lead to the image of a capricious God, who is not even bound to truth and goodness. God’s transcendence and otherness are so exalted that our reason, our sense of the true and good, are no longer an authentic mirror of God, whose deepest possibilities remain eternally unattainable and hidden behind his actual decisions. As opposed to this, the faith of the Church has always insisted that between God and us, between his eternal Creator Spirit and our created reason there exists a real analogy, in which – as the Fourth Lateran Council in 1215 stated – unlikeness remains infinitely greater than likeness, yet not to the point of abolishing analogy and its language. God does not become more divine when we push him away from us in a sheer, impenetrable voluntarism; rather, the truly divine God is the God who has revealed himself as logos and, as logos, has acted and continues to act lovingly on our behalf. Certainly, love, as Saint Paul says, “transcends” knowledge and is thereby capable of perceiving more than thought alone (cf. Eph 3:19); nonetheless it continues to be love of the God who is Logos. Consequently, Christian worship is, again to quote Paul – “λογικη λατρεία”, worship in harmony with the eternal Word and with our reason (cf. Rom12:1).

This inner rapprochement between Biblical faith and Greek philosophical inquiry was an event of decisive importance not only from the standpoint of the history of religions, but also from that of world history – it is an event which concerns us even today. Given this convergence, it is not surprising that Christianity, despite its origins and some significant developments in the East, finally took on its historically decisive character in Europe. We can also express this the other way around: this convergence, with the subsequent addition of the Roman heritage, created Europe and remains the foundation of what can rightly be called Europe.

Thanks to Rick Garnett at Mirror of Justice for the pointer.

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As explained in a prior post, the jurisdictional infirmities exposed by the Fourth Circuit’s rulings in Virginia v. Sebelius and Liberty University v. Geithner should bring renewed attention to the alternative state standing theories in Florida v. HHS not yet addressed by any court. There are two such theories.  This post discusses the first, and a later post will examine the second.

The states’ lead theory is one of indirect injury from the incremental Medicaid expenditures each state will have to make when presently uninsured individuals comply with the mandate by enrolling in Medicaid. See States’ 11th Cir. Br. at 67-69.

The federal government has argued that this allegation of indirect injury is insufficient as a matter of law, that the claimed injury rests on speculation, and that any potential injury from individuals’ compliance with the mandate is neither actual nor imminent. Additionally, relying on Pennsylvania v. New Jersey, 426 U.S. 660 (1976), the federal government has argued that “it is difficult to see how a State can claim injury on the ground that its citizens choose to accept benefits the State offers them under State law. Reply to Mot. to Dismiss at 13.

The distinction between direct and indirect injuries in the state standing context is traceable to Florida v. Mellon, in which Florida sought to challenge a federal tax on the ground that it would “have the result of inducing potential taxpayers to withdraw property from the state, thereby diminishing the subjects upon which the state power of taxation may operate.” 273 U.S. 12, 17-18 (1927). The Court held that Florida could not go forward with the suit because the State was not in immediate danger of sustaining “any direct injury as the result of the enforcement of the act in question.” Id. at 18. In short, the Court drew a line between direct and indirect injury, and held that it lacked jurisdiction because the claimed fiscal injury arising by virtue of the actions of private citizens in response to the federal law was indirect.

While the line between indirect and direct may be hard to identify in certain cases, the distinction seems administrable enough to foreclose the claimed injury to states resulting from individuals’ compliance with the individual mandate. Recall, also, that states are not permitted to sue the federal government as parens patriae. Allowing states to rely on indirect fiscal injury could provide for easy circumvention of that limitation.

In attacking the states’ indirect injury argument as speculative, the federal government has argued that (i) the pre-mandate status quo already imposes costs on the states in the form of uncompensated care; and (ii), moving more people into insurance may result in a net reduction of costs borne by the states even though some of that insurance is state-provided insurance through Medicaid. The federal government has also pointed to circuit court cases denying standing to states on the ground that the complained-of fiscal effects were too attenuated. See Pennsylvania v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976); Iowa v. Block, 771 F.2d 347, 352-54 (8th Cir. 1985).

If the Supreme Court were to consider this speculation argument, it is unclear (from the filings I have reviewed, anyway) whether the factual record would be sufficiently developed to ground a prediction about the effects of the mandate on state fiscs (which are likely to vary from state to state). If the record were to be found insufficiently developed, that would cut against the states because it is their burden to establish standing.

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My impression in thinking about and reading about the Fourth Circuit’s decision in Liberty University v. Geithner is that there are not many people out there who are knowledgeable about the federal tax Anti-Injunction Act and the authoritative precedents interpreting it. I say this not as an authority on the statute, as I assuredly am not. I say it as someone who has tried to stay abreast of the jurisdictional issues surrounding the mandate challenges but who still has lots of catch-up work to do on the federal tax AIA. There are not many out there with pre-existing expertise in this area. Most are learning it as they go, and there’s only so much time in the day. Moreover, many discounted the federal tax AIA after a while and focused on other issues. For example, even after the Fourth Circuit ordered supplemental briefing, I thought it was a signal about the panel’s interest in upholding the mandate as a tax rather than an interest in analyzing the jurisdictional bar, so accustomed had I become to the federal government losing on the issue. Perhaps my perspective is peculiar, but I suspect not.

For those not inclined to spend the weekend tracking down cases interpreting the federal tax AIA (but who believe that the law constrains and that it’s not ideology all the way down), here are some reasons to believe that the Fourth Circuit majority might be right about the AIA:

(1) As Ilya Somin has pointed out and Brad Joondeph has emphasized, a critical piece of Judge Motz’s analysis is the conclusion that “tax” has a broader meaning in the AIA than in analyzing the scope of Congress’s Article I powers. Other courts’ analyses have not adequately accounted for this statutory expansiveness.

(2) The federal government’s initial litigating position was less likely than its later position to be refracted through considerations about how certain arguments would be reported by the media and received by the broader public.

(3) None of the appellate courts had the benefit of an adversarial presentation of the issues. But the Fourth Circuit had the benefit of all the other prior AIA analyses and took the time to address the perceived shortcomings of each.

(4) The Fourth Circuit was able to consider the amicus brief filed (in the D.C. Circuit) on behalf of two former IRS commissioners, which provides a tax-law perspective on the AIA. (UPDATE: For the Fourth Circuit supplemental briefs on the AIA, which all conclude that the AIA does not bar a challenge to the mandate, see here and here (federal government briefs), here (Liberty University’s brief), here (Virginia’s brief), and here (Pacific Legal Foundation/Steven Willis). There are some differences in the way that that the briefs reason toward their conclusion about the AIA, so all are worth examining in forming one’s perspective on the federal taxa AIA arguments. Thanks to Timothy Sandefur for the pointer to the PLF letter brief and to the ACA Litigation Blog for hosting the briefs.)

(5) Judge Motz’s thorough analysis provides plausible legal responses to some of the more policy-influenced arguments put forth by the federal government, the plaintiffs, and the dissent.

(6) The mandate challenges are the kind of case in which “technicalities” like the AIA can be given by short shrift, when the parties on both sides want a merits resolution and judges want to contribute their analysis of the merits (as evidenced by the proliferation of opinions at the appellate level).

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Regardless of what one thinks about the constitutionality of the individual mandate in the Affordable Care Act, there appears to be an emerging bipartisan consensus that (1) its constitutionality should be resolved by the Supreme Court, and (2) the Supreme Court should act sooner rather than later (i.e., by the end of the October 2011 Term rather than in some later term). For example, the news coverage here in Virginia after yesterday’s rulings dismissing Virginia’s challenge and dismissing Liberty University’s challenge included statements urging Supreme Court review by both Republican Governor Bob McDonnell and Democrat Senator Mark Warner (relevant statements quoted below if you don’t want to click through).

In light of yesterday’s rulings, however, there is a real possibility that the Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate. Challenges by the states have been dogged by questions about jurisdiction from the outset. The Fourth Circuit’s answer to some of those questions knocked out Virginia’s case. The 26-state mandate challenge in Florida v. HHS has so far dodged jurisdictional bullets because of the presence in that case of private parties, whose standing to challenge the mandate has generally been accepted by the federal courts. But yesterday’s Fourth Circuit ruling in Liberty University v. Geithner has breathed new life into a private-plaintiff jurisdictional problem that the parties to the mandate challenges had left for dead. Specifically, the Fourth Circuit held that the Tax Anti-Injunction Act prohibited individuals subject to the mandate from bringing a pre-enforcement challenge because such a suit was one to restrain the assessment or collection of a tax.

If there is a jurisdictional problem preventing both the private plaintiffs (who are subject to the individual mandate) and the State plaintiffs (who are not subject to the individual mandate) from having a federal court hear their constitutional challenges, then the Supreme Court cannot get to the merits of the mandate challenges any time soon.

One response may be to hope that the Supreme Court reads the Tax Anti-Injunction Act differently from the Fourth Circuit. That response may rest on wishful thinking. I need to study the relevant precedents more closely than I have previously, but Judge Motz’s opinion strikes me as persuasive. (See also the amicus brief filed by two former Commissioners of the IRS, Mortimer Caplin and Sheldon Cohen.)

In any event, there is no need to take a chance and rest the possibility of a mandate-challenge merits decision on speculation about how the Supreme Court will resolve the legal uncertainty about application of the Tax Anti-Injunction Act. The Act sets forth a statutory limitation that Congress can and should change to allow a pre-enforcement challenge to the individual mandate. Importantly, it appears that Congress can make this change effective immediately and can make clear that the change preserves jurisdiction over private-party challenges to the individual mandate that have already been filed. See Hamdan v. Rumsfeld, 548 U.S. 557, 576 (2006) (“We have in the past ‘applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.'”), quoting Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994); see also Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994) (“[I]n Andrus v. Charlestone Stone Products Co.436 U.S. 604, 607-608, n. 6 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the amount in controversy requirement for federal question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was ‘now of no moment.'”). (My assessment of the legal soundness of a “retroactive” jurisdictional cure is based on just a little bit of digging around thus far, and I have not yet vetted the assessment with others, but the foregoing authorities appear to support it. Critical commentary is, of course, welcome on this or any other aspect of the post.)

In sum: The constitutional merits of the challenges to the individual mandate have divided largely (though not cleanly) along party lines, but there appears to be bipartisan agreement that the merits should be decided soon. A legislative fix to the Tax Anti-Injunction Act can eliminate a jurisdictional barrier that presents a serious possibility of causing extensive delay. Congress can and should get rid of that barrier and clear the way to prompt Supreme Court resolution of the constitutional challenges to the individual mandate.


Statement by Gov. McDonnell (R-VA) on the need for prompt Supreme Court review of the constitutionality of the individual mandate:

“As federal courts across the country continue to come to differing conclusions on the merits of cases arguing the unconstitutionality of the federal health care law, today’s decision further exemplifies why these cases should be expedited to the nation’s highest court.  It is the Supreme Court that will ultimately determine whether the federal mandate on every citizen to purchase health insurance violates the U.S. Constitution.  States and businesses continue to expend time and money and languish in uncertainty as they try to come into compliance with a law that may ultimately be ruled unconstitutional. It is exasperating that the President and the Justice Department oppose a prompt resolution of this case through an expedited appeal.  America needs finality in this case.”

Statement by Sen. Mark Warner (D-VA) on the desirability of prompt Supreme Court review of the constitutionality of the individual mandate:

“This is going to end up getting decided by the Supreme Court and candidly, I hope, the sooner the better. I do believe there are a lot of parts of the health care reform law that make sense. I think there are some parts that need to be corrected.”

[Note: The Warner quotation comes directly from the linked video. The accompanying text misquotes Sen. Warner.]

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The Fourth Circuit’s dismissal of Virginia’s challenge to the individual mandate in the Affordable Care Act rests on a straightforward understanding of the limited power of federal courts to resolve questions of constitutional law. Federal courts do not resolve abstract disputes or issue advisory opinions; they resolve only cases or controversies. And there was no case or controversy between Virginia and the federal government regarding the enforceability of the individual mandate.

In their responses to the ruling, Virginia Governor Bob McDonnell and Virginia Attorney General Ken Cuccinelli have painted the decision as a blow to federalism, with a federal court showing disrespect to state legislation.

Governor McDonnell:

” To dismiss a Virginia statute as a basis for standing, declaring it to be ‘quintessentially political,’ and asserting that a state cannot be a ‘constitutional watchdog’ undermines our precious principles of federalism.”

Attorney General Cuccinelli:

“Not only does the court’s opinion reject the role of the states envisioned by the Constitution, it dismisses an act of the Virginia General Assembly—the Health Care Freedom Act—as a mere pretense or pretext. It is unfortunate that the court would be so dismissive of a piece of legislation that passed both houses of a divided legislature by overwhelming margins with broad, bipartisan support.”

These responses miss the mark. The Fourth Circuit reasoned that Virginia did not identify “any plausible, much less imminent, enforcement of the [Virginia Health Care Freedom Act] that might conflict with the individual mandate.” The court properly concluded that to use such a law as a basis for asking a federal court to opine on the validity of a provision of federal law that is unenforceable against the state “would convert the federal judiciary into a ‘forum’ for the vindication of a state’s ‘generalized grievances about the conduct of government.'”

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It’s always better to win than to lose, but if one is going to lose, there are better and worse ways of doing so. I am not a political analyst and am much more comfortable parsing precedents than polls, but it seems to me that Virginia’s loss on jurisdictional grounds in Virginia v. Sebelius was a  better way for Attorney General Cuccinelli to lose the case than a loss on the merits. There are two reasons. First, it allows the AG to assert that the only federal court to reach the merits of the constitutional challenge ruled in Virginia’s favor. Second, it provides the AG with some amount of solidarity in the loss. The AG’s first news release reacting to the decision correctly points out that the Virginia Health Care Freedom Act–which the Fourth Circuit found insufficient to generate standing–was enacted with bipartisan support. Given that political reality, the depiction of this lawsuit as one man’s crusade is inaccurate. And because the lawsuit was not one man’s crusade, the loss was not one man’s loss. Far better to lose on a jurisdictional ground, when one can describe the decision as an insult to the bipartisan group of legislators who voted to enact the Virginia Health Care Freedom Act, than to lose on the merits and suffer a federal court rebuke of one’s constitutional vision.

(N.B. Thinking about better and worse ways of losing a case reminds me of this comment by then-Solicitor General Kagan in the Citizens United oral argument: “If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.”)

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The Fourth Circuit’s opinion in Virginia v. Sebelius describes a cited authority as about the “federalism interest” in “avoidance of state inference with the exercise of federal powers.” With respect, the greater federalism interest would seem to be in avoiding excessive federal inference in exercising federal power (though such inference has been allowed in some doses since at least McCulloch v. Maryland).

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If the Fourth Circuit’s interpretation of the Anti-Injunction Act were to be adopted by the Supreme Court, that would knock out all the private party challenges to the individual mandate. That would return attention to the question of whether the states’ challenge to the individual mandate is justiciable.

The Virginia approach of relying on a conflicting state statute has all sorts of problems, including those identified by the Fourth Circuit in Virginia v. Sebelius.

The states in Florida v. HHS have developed additional theories of standing that do not require conflicting state statutes. They have done so because necessity is the mother of invention; the necessity arises from the simple fact that most of the state plaintiffs seeking to challenge the individual mandate do not have an anti-mandate state law like Virginia’s Health Care Freedom Act.

I have argued in an amicus curiae brief in the Eleventh Circuit and in The Ghost that Slayed the Mandate that Florida’s alternative theories do not succeed in establishing the justiciability of the states’ challenge to the individual mandate. The Eleventh Circuit said it did not need to address state standing. The issue was “purely academic,” said they, because at least one private plaintiff had standing and one is enough. I criticized that reasoning in an earlier post that focused on the relationship between inseverability and standing.

I can now add another criticism: It may very well be that there is no subject-matter jurisdiction over the private plaintiffs’ challenges because of the Anti-Injunction Act. If the AIA blocks the private plaintiff challenges, then the only way to reach the merits is by adjudicating the states’ challenge to the individual mandate. The states can likely get around the AIA with South Carolina v. Regan, 465 U.S. 367 (1984). Consequently, the jurisdictional action going forward should focus not only on the AIA but also on the states’ theories for why they can challenge a statutory provision that imposes no obligation on them.

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The losing parties in Virginia v. Sebelius and Liberty University v. Geithner will waste no time seeking Supreme Court review of the decisions. But the Fourth Circuit’s dismissals on jurisdictional grounds make it less likely that the Supreme Court would grant certiorari to use either of those cases as a vehicle for deciding whether the individual mandate is constitutional.

The Supreme Court could still grant review of either or both cases, but it would probably do so only if it viewed the jurisdictional questions as independently worthy of Supreme Court review.

The Anti-Injunction Act is a federal statute that prohibits pre-enforcement challenges to tax assessments. Its basic purpose is to prevent lawsuits from interfering with the collection of tax revenue. The statute does not bar all challenges to taxes, only pre-enforcement challenges.  Also, because the prohibition of pre-enforcement challenges is a creature of statute, Congress could lift it and authorize pre-enforcement challenges to the individual mandate. If both Republicans and Democrats agree that the country is better off knowing sooner rather than later whether the individual mandate is constitutional, then Congress could enact and the President could sign legislation authorizing federal courts to decide pre-enforcement challenges. That legislation would take the Anti-Injunction Act off the table as a limitation.

If adopted by the Supreme Court, the Fourth Circuit’s Anti-Injunction Act reasoning in the Liberty University case would prevent judicial review of any challenges brought by individuals subject to the individual mandate, raising the possibility that the Supreme Court could find all of the challenges to the individual mandate outside of federal jurisdiction.

The States in Florida v. HHS have advanced standing arguments that do not depend on anti-mandate state laws (like the argument rejected by the Fourth Circuit in Virginia v. Sebelius). The Eleventh Circuit did not address those arguments because the panel concluded that the private plaintiffs have standing. Those arguments may receive some new attention now that there may be a statutory bar to jurisdiction over the private plaintiffs’ challenges. For my assessment of those arguments, see Section II.D of my draft law review essay, The Ghost that Slayed the Mandate, forthcoming in the Stanford Law Review.

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A split Fourth Circuit voted 2-1 to dismiss Liberty University’s challenge to the individual mandate in the Affordable Care Act. Judge Motz authored the majority opinion, in which Judge Wynn joined, holding that the suit must be dismissed under the Tax Anti-Injunction Act because it is a preenforcement challenge to a tax. Judge Davis dissented from the jurisdictional holding. Reaching the merits, Judge Davis concludes that the individual mandate is a constitutional exercise of Congress’s power under the Commerce Clause. Analysis to follow in subsequent posts.

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In a unanimous opinion authored by Judge Motz, the Fourth Circuit has dismissed Virginia’s challenge to the individual mandate, holding that “Virginia, the sole plaintiff here, lacks standing to bring this action.” I will post the opinion and more analysis shortly. [Update: Opinion available here]

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