Individual mandate unlikely to be struck down

In the waning hours before release of the opinion, I am compelled to make my prediction regarding the Supreme Court ruling on Obamacare.

I believe the individual mandate will not be struck down.

Specifically, one or more of the following, on stare decisis grounds or on the grounds that it is a political question, will rule that the government with a rational basis may compel the purchase of a product pursuant to the commerce clause: Scalia, Roberts, or Kennedy.

I believe the states themselves will be considered to not have standing to challenge the individual mandate, and this will likely be a 6-3 or 7-2 decision.

I believe that the states' challenge on Medicaid grounds will be defeated unanimously.

I believe one or more of the following will rule against the challengers to the individual mandate due to either a lack of ripeness, failure to comply with the anti tax injunction act, or complete lack of standing: Ginsburg, Sotomayor, Breyer, Kagan, or Kennedy.

If all of the above happens, then the individual mandate will not be struck down, but will not be deemed constitutional.  The fight will be left for another day.

I hope I am incorrect...

Virginia's supplemental brief on the Anti Injunction Act

No time to analyze, just links to uploaded copies of

Virginia's Supplemental Brief in Commonwealth v. Sebelius 

The Federal Government's Brief in Commonwealth v. Sebelius

The Federal Government's Brief in Liberty v. Geithner

The Plaintiffs' Brief in Liberty v. Geithner

regarding the status of the individual mandate penalty as a tax and the application of the Anti Injunction Act.

Provided as a public service.

My previous coverage of PPACA/Individual mandate challenges can be found here.

Virginia healthcare challenges suffer further unexpected setbacks

UPDATE:  This setback has different effects on the Commonwealth of Virginia and the Liberty U. Plaintiffs.  See details here and here.

Unexpectedly on Monday afternoon the Fourth Circuit Panel that heard oral argument in Commonwealth v. Sebelius and Liberty U. v. Geithner ordered the parties to provide supplemental briefing on a narrow set of issues barely addressed at any stage thus far.

The ordering of supplemental briefs after oral argument is quite unusual by itself, moreover the subject matter of the additional briefs should be cause for concern by opponents of the individual mandate.

The Orders require that the parties must submit supplemental briefs by May 31, 2011 on three subjects.

1. When applicable, does the Anti-Injunction Act, 26 U.S.C. § 7421(a), deprive a federal court of subject-matter jurisdiction? See J.L. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 5-8 (1962). If so, does it divest federal courts of jurisdiction in this case? See Bob Jones University v. Simon, 416 U.S. 725, 736-48 (1974).

2. Can a court determine that a challenged exaction qualifies as a “tax” for purposes of the Anti-Injunction Act without reaching the question of whether the exaction qualifies as a “tax” for purposes of Art. I, § 8, cl. 1? Compare Bailey v. George, 259 U.S. 16 (1922), with Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).

3. Assuming the Anti-Injunction Act does apply in this case, does a plaintiff have the ability to challenge the exaction provided by § 5000A in a refund suit or otherwise? See 26 U.S.C. § 7422(a); 28 U.S.C. §§ 1331, 1340, 1346.

What is the anti-injunction act all about?

In order to avoid prolific anticipatory (before tax enforcement) litigation seeking to prevent the government from enforcing a particular tax, there is a federal statute prohibiting lawsuits seeking injunctions against collection of federal taxes.  There are exceptions to this act.  In many instances when a tax has been erroneously collected the remedy for the taxpayer is a lawsuit under 26 U.S.C. § 7422 after presentation and denial of a claim for refund.

Where does this leave us on the schedule?

The Fourth Circuit will not be deciding either case until at least after May 31, 2011.  Moreover the Fourth Circuit will likely want to take some time to consider the arguments in the briefs.  In terms of timing, this is a setback for the Virginia cases, and may just put them directly on par, in terms of timing, with the Florida case going before the 11th Circuit in early May.

What does this mean for the substantive outcome of the cases?

This is a setback.  It means the Fourth Circuit is seriously considering declaring the penalty under the individual mandate a tax, and barring both cases on procedural grounds.  If this were to occur, the Supreme Court could deny certiorari for the Virginia cases, without resulting in a substantive effect on the Constitutionality of the individual mandate.  The Virginia Plaintiffs would then be left until after actual imposition of the tax penalty before a remedy could be had that challenges the Constitutionality of the individual mandate.  This would set these cases back for years.

Order in Commonwealth v. Sebelius can be found here.

Order in Liberty U. v. Geithner can be found here.


Click here. for my previous posts regarding the individual mandate.

Virginia redistricting lawsuits about to be dismissed, will they be refiled?

There are three existing federal lawsuits challenging the 2001 redistricting plans.  Now that a redistricting plan has passed the General Assembly, and the Governor has signed it, what happens to those lawsuits?  More importantly, will new lawsuits take their place?

What happens to the existing federal lawsuits?

They will be dismissed.

There are three pending federal lawsuits challenging the 2001 redistricting plans.  I described those lawsuits here, and here.  To understand why the lawsuits are challenging a ten year old law, you can refer back to my post Is Virginia headed toward a Constitutional crisis over redistricting?  To understand what happens to the existing federal lawsuits the reader needs to understand mootness, ripeness, and the broader concept of justiciability.  Justiciability is explained in my post regarding the DC healthcare case.  Mootness is the concept that one can only challenge an apparent wrong to force that wrong to be changed while the wrong is ongoing.  For example, one can only challenge an unconstitutional law while the government is attempting to enforce that law.  Ripeness is discussed in my post regarding the first 2011 redistricting lawsuit dismissed back in February.  In short ripeness is a doctrine that requires that a party actually be injured before bringing a lawsuit.

Lawsuit number one - to be dismissed

This lawsuit only challenges apportionment for the senate 2001 plan.  The 2001 plan has now been superseded by a plan passed by the General Assembly and signed into law.  The claims in this lawsuit arise from malapportionment under the Federal and state Constitutions, and not a lack of compactness.  Hence, the claims do not automatically transfer to legislation passed a decade after the original 2001 plan, as apportionment under the two plans is not remotely similar.  This makes the challenges distinct.  This case is now moot and should be dismissed without any further pleadings.

Lawsuit number two - to be dismissed

This lawsuit challenges Virginia House and Senate, and congressional redistricting under the 2001 plan on the basis of malapportionment under both state and federal law.  It was filed in federal Court.  The state Court claims should be dismissed for mootness under the same analysis as lawsuit one.  The challenge to congressional malapportionment should be dismissed as the claim is not ripe.  It has not been shown that the General Assembly will fail to pass a new Congressional redistricting plan and so this case should be dismissed as not yet causing harm, i.e. not ripe.  With no federal claim there is no basis to be in Federal Court, and the case will be dismissed even if there are state law claims, as the case was originally filed in Federal Court, and can not be sent to state court directly from Federal Court under these circumstances.

Lawsuit Number three - to be dismissed?

This lawsuit follows all the same reasoning as lawsuit two with a major exception.  This case was filed in state court and was removed to Federal Court by the Commonwealth of Virginia.  To the extent there are still state law claims against the 2011 plan, the Plaintiffs may argue their compactness and contiguousness claims should transfer to the 2011 plan and the matter should be sent back to Hanover County Circuit Court.  The Plaintiffs if the want to challenge the 2011 plan might be better off allowing this case to be dismissed without prejudice, and simply filing a new case in state court.

When will we learn about new state court actions?

I regret to say that we will learn about any redistricting cases in state court via word of mouth and the main stream media.  Virginia is making great strides in technology in its court system, but it is still difficult to search for cases at the state level in an efficient manner online.  If anyone hears of a 2011 Virginia Circuit Court case let me know, I will see if I can obtain the pleadings.

For other redistricting posts, primary sources, and other information regarding the Virginia Redistricting process in 2011 please see The Road to Redistricting Litigation in Virginia.

Virginia redistricting lawsuit: not so fast says federal court

Apparently some citizens and attorneys feel successful Virginia redistricting is an unlikely conclusion, and decided to file a lawsuit in the US District Court for the Western district of Virginia to jumpstart the redistricting process. In the case of Carter v. State Board of Elections, the plaintiffs are individuals claiming their votes are diluted in state Senate elections under the current districting plan.

See the complaint here:

http://www.scribd.com/doc/49679191/Carter-v-SBE-Complaint

This case filed on February 4, 2011 appears to have been prepared and filed with the matter of days after updated census information came out. The plaintiffs allege that as Virginia has divided two party government a deadlock on redistricting is likely, and hence a lawsuit asserting rights to equal protection under the law is not premature.

The case is dismissed

Federal district courts are courts of limited jurisdiction. As such, federal courts have the duty to determine, even without the request of one of the parties to the case, if the federal court has jurisdiction.  Judge Moon, prior to any filings by the defendants, dismissed the case as he determined the federal court does not currently have jurisdiction even if everything the plaintiffs say is true.  This was a mere eleven days after the filing of the Complaint.

Judge Moon's opinion is here:

http://www.scribd.com/doc/49679470/Carter-v-SBE-opinion

Judge Moon's order of dismissal is here:

http://www.scribd.com/doc/49679144/Carter-v-State-Board-of-Elections-15Feb2011-Order