Friday, March 11, 2011

While the individual mandate is challenged before the Supreme Court, will "individuals" be forced to sit on the sidelines?

On March 3, 2011 I discussed the other Virginia Healthcare case in which Judge Moon determined the individual mandate to be Constitutional. I expressed that I understood that arrangements had been made for both Virginia cases to be argued during the same session in the Fourth Circuit.  Below is the order setting oral argument, and a brief explanation of what the order means.

The order can be found here:

This order is from the Liberty University v. Geithner appeal in the Fourth Circuit.  In short it indicates that the Liberty case will be argued "seriatim" with case number 11-1057 (Virginia v. Sebelius).

Seriatim means: "One after another; in a series; successively . . ."  Black's Law Dictionary 1371 (7th ed. 1999).  The cases will be argued one right after the other.  The cases have not been consolidated, but merely arranged on the calendar to be argued on the same date before the same panel.

Why does this matter?

This is bad for the Liberty U. Plaintiffs and their attorneys.  Judge Moon dismissed some of the Liberty U. Plaintiffs for lack of standing and cast doubt on the standing for the remaining Plaintiffs.  If the cases are adjudicated separately it is possible for the Fourth Circuit to dismiss the Liberty U. case for lack of standing without ruling on the Constitutionality of the individual mandate for that case.  Regardless of the outcome in Virginia v. Sebelius, the Plaintiffs in Liberty U. will then be filing a petition for writ of certiorari regarding the issue of standing.  The Supreme Court can then reject the writ filed by the Liberty U. Plaintiffs, and grant the writ for Virginia.  The Liberty U. plaintiffs and attorneys will then miss their opportunity to argue one of the most important issues of our time. 

Presuming Virginia is unsuccessful in bypassing the Circuit Court, these two appeals are the most mature (farthest along) of the challenges to the Constitutionality of the individual mandate.  It is unlikely any other plaintiffs will get to the Supreme Court sooner, which means the Supreme Court can essentially freeze out all of the individual plaintiffs nationwide and litigate the individual mandate as a conflict between the federal government and the states only.

My original post regarding the other Virginia healthcare case can be found here:

Other previous coverage of federal challenges to the constitutionality of the PPACA and the individual mandate are linked below:

Comparison of the Virginia and Florida healthcare rulings

Posts regarding the DC healthcare ruling

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