In 2012 the Supreme Court will decide for the first time if Congress has the power to force the purchase of a good or service under Article I § 8 of the Constitution, and Virginia will be left watching from home.
President Obama signed the PPACA, a sweeping overhaul of America's healthcare system, into law in March 2010. Litigants, including high profile state attorneys general lined up to challenge the new law, specifically the individual mandate. A strategic decision to bring suit separately by the Commonwealth of Virginia was a tremendous gamble, and is about to become a losing bet.
On September 8, 2011 the U.S. Court of Appeals for the Fourth Circuit overturned Virginia's challenge to the individual mandate in Commonwealth v. Sebelius. The fact the 4th Circuit upheld the individual mandate was not surprising given the expectations from the panel selected. The concerning element of the ruling was the reason for the dismissal, standing. Standing is the doctrine that one must be the party actually injured before you are allowed to bring a lawsuit, the concept is derived from Article III § 2 Cl. 1 of the Constitution. Further discussion of standing can be found here.
Decisions from the 6th, 11th, and now 4th Circuit are ready to be appealed to the Supreme Court. Other courts are not far behind. Because of the nature of the 4th Circuit ruling in the Virginia case, I predict the Supreme Court will not invite the Commonwealth of Virginia to argue in one of the most important cases of our era.
Did Virginia make a mistake by going it alone?
In a word, no.
A bare minority of states decided before the PPACA was passed to sue to invalidate Obamacare once it was passed. This became the successful Florida and 11th Circuit cases. Virginia declined to participate in that lawsuit. I believe there are three major reasons why Virginia pursued this matter separately.
1. Speed: Virginia could file in the U.S. District Court for the Eastern District of Virginia also known as the "Rocket Docket." It is called this because statistically the E.D. Va. is the fastest federal court for adjudicating civil cases in the country. By suing in the E.D. Va. Virginia could likely get a decision sooner, be in the appeals court sooner, and be the first to appeal to the Supreme Court. The Fourth Circuit is also known for being fairly swift.
2. Medicaid: The other states wanted to pursue another argument regarding the unconstitutionality of Obamacare due to additional burdens placed on state Medicaid programs. When the federal government gives money to the states it can do so with strings attached. There are some minor limitations to this principle, but they did not apply in this instance. Despite winning in both the district court and the 11th Circuit on the issue of the individual mandate, the other states lost the Medicaid argument before all of these judges. This was a bad argument, and watered down an otherwise strong and more important argument invalidating the individual mandate.
3. VHCFA: Virginia passed the Virginia Health Care Freedom Act ("VHCFA") shortly before the passage of Obamacare. This act says in short: "No resident of this Commonwealth, . . . shall be required to obtain or maintain a policy of individual insurance coverage . . ." Va. Code § 38.2-3430.1:1. This law provided Virginia a unique opportunity to challenge a federal law as being in direct contravention of a state law.
These are all good reasons.
Many will speculate as to the additional reasons Virginia filed separately. The purpose of this article is not to speculate as to those additional reasons.
Did something go awry in the District Court?
Virginia, for the most part won at the District Court level. The little Virginia lost (conceivably a large loss), allowed Virginia to control the timing of appeal. Virginia did what it planned and successfully used the speed of the rocket docket to reach the 4th Circuit first.
Should Virginia have merged its case in the 4th Circuit?
A case from the Western District of Virginia also reached the 4th Circuit at about the same time. This case, Liberty U. v. Geithner, was brought on behalf of a university and a handful of individuals on commerce clause grounds, and religious liberty grounds. The plaintiffs in Liberty U. lost at an early stage in their case in the district court. In the 4th Circuit the cases were to be heard on the same day by the same judges, but were to remain separate. Virginia made no attempt to merge the two cases.
The Liberty U. plaintiffs had problems showing standing, and their religious liberty arguments were fairly weak. Virginia, as a governmental entity, came into the 4th Circuit in a strong position, and made a good strategic decision not to tie its fate to the Liberty U. plaintiffs.
Virginia lays the groundwork for its loss.
After all the briefing, and preparation, Virginia laid out the basis for its loss at oral argument. The 4th Circuit panel selection was unfavorable for Virginia. Virginia made things worse as the panel hammered counsel on the issue of standing, and counsel for Virginia ultimately rested their entire basis for standing on the VHCFA. Stating in no uncertain terms:
"I'm resting my claim on my statute." - Va. Solicitor General at oral argument on Commonwealth v. Sebelius, Record No. 11-1057, U.S. Court of Appeals for the Fourth Circuit, May 10, 2011.
For a detailed discussion of oral argument see my post here.
After the 4th Circuit argument, the 6th and 11th Circuit's hear oral arguments in similar cases. The 4th Circuit then orders Virginia to perform additional briefing, delaying the potential date for a decision. The 6th Circuit turns around a decision in approximately one month upholding the individual mandate. Virginia has now lost the advantage of speed. The 11th Circuit then rules, striking down the individual mandate and dismissing the Medicaid challenge without fanfare. Virginia lost its second reason for going it alone. The 4th Circuit does not rule until September.
Virginia took just enough rope . . .
Relying on Virginia's steadfast unwavering statement that the VHCFA is the only basis Virginia has for standing, the panel reversed the district court and dismissed Virginia's case for lack of standing. The panel did not even explore any other possibilities for standing because Virginia chose only one. Regardless of the panel, this was always a mediocre legal argument, but a good argument in the media. Yet, the case is not tried in the media. The last reason to go it alone was gone.
But how did the other states survive this hurdle?
In a little discussed portion of the 11th Circuit opinion, the court examined the nature of the parties in the 11th Circuit case. By that time, 11th Circuit case involved over 25 states, the NFIB, and a handful of individuals. The 11th Circuit analysis indicates
"Although the question of the state plaintiffs’ standing to challenge the individual mandate is an interesting and difficult one, in the posture of this case, it is purely academic and one we need not confront today. The law is abundantly clear that so long as at least one plaintiff has standing to raise each claim—as is the case here—we need not address whether the remaining plaintiffs have standing. See, e.g., Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S. Ct. 205, 212 (1981) . . ." p. 10.
The 11th Circuit determined that at least one individual plaintiff had standing, and as such all the plaintiffs may proceed. No such individual plaintiffs were joined with Virginia in its lawsuit, and it would have been difficult to predict this outcome.
If Virginia lost due to lack of standing, do they still get to go to the Supreme Court?
I believe the answer to this question will be no.
Standing is a procedural issue. A decision on the Constitutionality of the individual mandate is a substantive ruling. The Supreme Court takes only a small proportion of all cases appealed. One of the major factors it looks for when deciding to take cases is a circuit split, a disagreement between circuit courts on a major issue. There is currently a circuit split between the 6th and 11th Circuits on the Constitutionality of the individual mandate. The 4th Circuit dismissed Virginia's case on procedural grounds, and did so on an issue that is nonexistent in all the other cases. The Supreme Court will likely take the appeals of the 6th and 11th Circuits and may even join in the Liberty U. case and cases not yet decided in the 3d, 9th, and D.C. Circuits.
If the Supreme Court allows Virginia to proceed, it will add a substantial additional complicated standing issue for which there is no current circuit split. For this reason I expect that Virginia will not be invited to the dance and will have to watch the litigation play out with the rest of us.
Where was the mistake made and what can be done?
At some point extremely early in the litigation, during the first motion to dismiss filed by the federal government in the district court, Virginia made the decision to use this argument, and only this argument to create standing. Judge Hudson agreed with Virginia’s reasoning, and Virginia did not have to face this issue again until the appeal.
Little can be done to add to the existing arguments. The same argument was brought at both the trial and appellate levels and the petition for writ of certiorari has already been filed.
Making this argument was a huge risk. If successful, it would provide an avenue for extensive 10th Amendment litigation driven by federalist attorneys general. This would possibly be an even bigger victory than simply overturning Obamacare. If unsuccessful, Virginia ran the outside risk that it would be left out of a Supreme Court battle that may decide the scope of Congressional power for decades to come.
If Virginia does not get before the Supreme Court, it is time to bring the next 10th Amendment case, and then the next one. Still, in Commonwealth v. Sebelius Virginia took the risk, and it looks like it is about to come up on the short side of history.
My previous analysis of litigation regarding the individual mandate can be found here.