Other federal lawsuits challenging the individual mandate are catching up while we await rulings in the claims made by states

There have been two true victories for opponents of the individual mandate, one in Virginia, and the second in Florida.  These matters have been appealed by the federal government.  At the same time, Plaintiffs have filed another dozen substantive claims in various courts throughout the country.  Of those that have been ruled upon at the trial level, challengers to Obamacare have lost in every other District Court.  See coverage of the other cases Liberty University v. Geithner, here, and Seven-Sky v. Holder, here.

Only one Federal Court of Appeals has ruled, and it found the individual mandate Constitutional by a vote of 2-1 (the ruling is far more complicated than the mere 2-1 vote suggests, and I explained the details here).

Where are we headed?

If you read the articles of any major news organization, it is presumed this litigation will ultimately be decided in the Supreme Court.  But, there simply is no guarantee the Supreme Court will weigh in on this issue.  Before the Supreme Court takes a case, they usually must see an egregious miscarriage of justice, or a conflict amongst appellate courts, or both.  Right now we have one appellate opinion.  For the challenges to the individual mandate to have a reasonable chance of being adjudicated in the Supreme Court there will likely need to be at least one victory for opponents of Obamacare before the Supreme Court is willing to take the case.

The most likely victories

The most likely victories will come from the Fourth or the Eleventh Circuits.  These are the two Circuits in which the lawsuits filed by Virginia and the other 26 states respectively are being adjudicated.  These are also the Circuits adjudicating the only victories so far.  Unfortunately it looks like the Fourth Circuit is likely to uphold the individual mandate, as explained here.  The Eleventh Circuit though appears to have a mixed panel, and there is a better chance of success.

Both the Fourth and Eleventh Circuits have completed briefing and oral argument and have been pending written decisions for over a month.

The rise of other opportunities

Because of the passage of time, two lesser known appeals have caught up.  In the Third Circuit, New Jersey Physicians v. Obama is now pending a decision.  In the Ninth Circuit, the matter of Baldwin v. Sebelius is pending a decision.

Both cases were dismissed due to a lack of standing for the Plaintiffs.  Although originally standing was thought to be a large hindrance to these types of cases, the courts have been fairly responsive to the need to find standing and proceed to the merits in other jurisdictions.  In fact, the Sixth Circuit Court of Appeals ruling upholding the individual mandate still goes to great lengths to explain why plaintiffs have standing in these types of cases.  The victory opponents of the individual mandate are looking for may be coming any day, but it may surprisingly be coming from the Third or the Ninth Circuits. 

Keep an eye on the Courts, any day now we will see our next ruling, and be one more step closer to convincing the Supreme Court to take on this major Constitutional issue.

For previous posts regarding the individual mandate please click here.

Opportunity for corporations to donate directly to federal candidates possible: Eighth Circuit grants en banc review for Swanson case

Excitement in the world of campaign finance litigation yesterday!* 

On July 12, 2011 the U.S. Court of Appeals for the Eight Circuit granted en banc review in the case of Minnesota Citizens Concerned for Life, Inc. v. Swanson, Record No. 10-3126.  This means that all of the Judges of the Eight Circuit will rule upon the issue of whether the Constitution allows the government to prevent corporations form making direct contributions to candidates.  

What is this about?

In May and June 2011 I covered the details of an Eastern District of Virginia case referred to generally as Danielczyk.  Coverage here.  In short the major issue of concern is whether a federal ban on contributions from corporations directly to federal candidates is Constitutional.  Judge Cacheris in the Eastern District of Virginia said the ban is unconstitutional.  The federal government has now appealed the Danielczyk decision.  Three federal appellate courts said a ban is Constitutional . . . until July 12.  On July 12, 2011 the Eight Circuit Court of appeals vacated their holding of Constitutionality, and now all the judges on the Circuit will have an opportunity to weigh in.

How does En banc review work?

When a case goes to a U.S. Court of Appeals it generally will go before a randomly selected panel of three appellate judges for that particular circuit.  Those three judges render an opinion, that then becomes the opinion of the entire circuit.  Litigants dissatisfied with a ruling by a panel may petition for rehearing (asking the same three judges to change their minds) or petition for a rehearing en banc.  A rehearing en banc is when all of the judges sit, hear argument, and rule upon a case.  Successful petitions for rehearing and petitions for rehearing en banc are very uncommon, and publicly available statistics for these procedures are unavailable (outside of the Federal Circuit).  Under Fed. R. App. P. 35(b) a rehearing en banc should only be granted in instances where the panel decision conflicts with a decision of the Supreme Court, or another decision from the same circuit, or if the case involves an issue of exceptional importance that can be concisely stated.  The petition is limited to 15 pages, and will often be narrowly focused on the major issue(s) in order to make an important point in a small amount of space.

Once en banc review is granted, the court may, in its discretion, order additional briefing.  This does not appear to have been done in this case.

What does this grant of en banc review mean?

1) It likely means a number of judges at the Eighth Circuit have serious misgivings about the Constitutionality of a ban on direct contributions from corporations to candidates.

2) More importantly, the judges of the Eighth Circuit likely believe this is an issue that will not be settled once and for all in the Courts of Appeals.  This issue is likely headed back to the Supreme Court where the scope of the January 2010 Citizens United Ruling will have to be clarified.

I just hope our Fourth Circuit Judges get a chance to opine before the Supreme Court sets the matter straight.

*I know campaign finance law and appellate procedure are not fun for everyone, but that is okay.  I think there is room enough in the world for all of us.

Ken Cuccinelli's take on the 6th Circuit upholding the Constitutionality of the individual mandate

Wherein Virginia Attorney General Ken Cuccinelli agrees with most of my analysis regarding the effect of the 6th Circuit opinion upholding the Constitutionality of the individual mandate:

From the Cuccinelli Compass July 12, 2011

July 12, 2011 Dear Friends and Fellow Virginians,    I wanted to update you on the 6th Circuit's appellate ruling in the healthcare case.  There are a lot of nuances to the ruling, so let's start at the beginning and go through them one at a time. Before I begin, I need to offer a disclaimer.  The way this case was decided, it ended up being very complex - so please bear with me.   Process Remember that in an ordinary appeal (not to the Supreme Court), three judges sit together to decide the appellate case. There are four appellate courts that have heard appeals in the healthcare cases: the 4th circuit (including Virginia); the 6th circuit; the 3rd circuit; and the 11th circuit (where our 26 sister states argued their case).  Only the 6th circuit has ruled so far.  We are awaiting rulings from the other three circuits. Because three judges sit on each of these cases, an important procedural rule to be aware of is that the narrowest opinion in the majority is deemed the governing opinion of the court.  The rationale for this rule is that the narrowest opinion is the one that everyone in the majority agreed upon, and then other opinions 'added' to that 'base' opinion.  This is a simplification of course, but that is the governing rule of interpretation. This rule of interpretation is important in the 6th circuit's case because all three judges wrote separate opinions in the case. Guts of the Ruling: Individual Mandate The three judge panel split 2-1, with two judges concluding that the individual mandate is constitutional, at least in this case.  One of those judges concluded that the mandate is constitutional, period.  However, Judge Sutton, who wrote the narrowest prevailing opinion, said only that it was constitutional in this case, but could be unconstitutional on a case by case basis in other cases - a very unusual ruling indeed. Because of the unique approach taken by Judge Sutton, it seems unlikely that other judges (or Justices) will follow his approach. More on Judge Sutton's opinion in a moment... Other Guts: Taxing Power While upholding the constitutionality of the individual mandate, the court voted 2-0 to reject the federal government's argument that the individual mandate and accompanying penalty could be sustained under Congress' taxing power.  You may ask, 'where was the third judge?'  The answer is that Judge Martin did not address the subject. Judge Martin reasoned that he had already upheld the individual mandate under the commerce clause, so there was no need to address the taxing power argument.  However, both Judges Sutton and Graham did address the subject - and both rejected the feds' claim that the penalty was a 'tax' and thus fell under Congress' constitutional taxing power. As a reminder, what the feds are arguing is that the penalty you must pay if you fail to buy the government-mandated health insurance is in fact a tax, not a penalty.  Furthermore, they say, that Congress has broad authority to levy taxes under Article I, section 8 of the constitution (this is certainly true).  Therefore, this reasoning goes, Congress was simply exercising its constitutional taxing power by imposing the penalty on those who fail to obey the government diktat to buy approved health insurance. Put simply, the feds are saying that they can order you to do just about anything, then assess a financial penalty against you if you fail to act, and because they deem that penalty a tax, the whole thing is constitutional.  This is the most radical claim in the whole case - by far. Those of you that have heard me speak on this matter have heard me say that I am loathe to make any specific predictions on how this case will go, but that I will predict that no judge or justice in America will agree with the federal government's radical taxing power argument. So far, so good on that prediction! The Scorecard So here is how the judges lined up in this case: Judge Martin: individual mandate IS constitutional; did not vote on taxing power. Judge Sutton: individual mandate IS constitutional (in this case); penalty is NOT a tax. Judge Graham: individual mandate is NOT constitutional; penalty is NOT a tax. Judge Martin didn't vote on both issues because he knew that the feds only needed to win on one to sustain the statute, so he didn't vote on the tax issue. Judge Sutton concluded only that the individual mandate was constitutional in this case, so because he presumably foresaw circumstances in which the individual mandate would not be constitutional, he proceeded to also rule on the tax question. My Opinion of the Opinions Two of the judges (Sutton and Graham) agreed that the exercise of power by the federal government in mandating individuals to buy government-approved health insurance is "unprecedented."  This is consistent with my view that for the federal government to win this case, the Supreme Court will have to go farther than it has ever gone before in expanding the commerce power of Congress.  However, for the states to prevail, the Court need not go beyond or overturn any prior commerce clause case. Judges Sutton and Graham thus agreed that it is the feds that are seeking a change in the status of the law related to the commerce clause, and despite saying that such a change is only for the Supreme Court to undertake, Judge Sutton implicitly accepted the change anyway by ruling the mandate constitutional. Judge Sutton unusually challenged the Supreme Court to take definite action.  Most strikingly he said that the Supreme Court "either should stop saying that a meaningful limit on Congress' commerce powers exists or prove that it is so."  Amen brother! Additionally, both Judges Sutton and Graham spoke predictively about the 'direction' of Supreme Court cases related to the commerce clause and federalism - a decidedly unusual feature of a lower court opinion. I am unfamiliar with any case ever that saw such brazen expectations of Supreme Court involvement explicitly written into the opinion.  It seems that virtually all of the trial and appellate judges who have touched this case are confident that it's going on to the Supreme Court.  Again, very unusual, but I do agree. The two greatest weaknesses of the controlling opinion - in my humble opinion - are the failure to effectively digest and respond to the arguments about the distinction between regulating "activity" vs. "inactivity," and the mistake of not treating the case as a facial challenge to the statute. That's all for now!  As always, we'll update you on the rulings as they come in.    Sincerely,    Ken Cuccinelli, II Attorney General of Virginia

_________________________________________

My analysis on the opinion from June 29, 2011:

http://northernvirginialawyer.blogspot.com/2011/06/sixth-circuit-sortof-upholds.html

There is an apparent dissimilarity between the two analyses, I may explain it when I have more time.

Analyzing and debunking Rep. Bachmann's legal past

Rep. and Presidential candidate Michele Bachmann has done well in recent polls causing many observers to consider her with greater scrutiny.  Nothing jumped out at me at first.  Then I heard that she was not just a former tax attorney, but that she was a tax attorney for the IRS.  This alleged fact gave me pause as a fiscal conservative and tea party sympathizer.

Below is the mess of information I found on Rep. Bachmann's legal career reorganized for rational perusal.

Law school: O.W. Coburn School of Law at Oral Roberts University

According to her bio, Rep. Bachmann graduated from the O.W. Coburn School of Law at Oral Roberts University in 1986.  It appears that this was the last class of the school as the school was merged into the fledgling law program at CBN University, later called Regents School of Law in Virginia.  This does not appear to have been a particularly prestigious law school, but in the end, a legal career is what you make of it.

L.L.M in Tax: William and Mary School of Law

Rep. Bachmann then claims to have obtained an L.L.M in Tax at the William and Mary School of Law in 1988.  In modern terms, most L.L.M. programs are designed for foreign trained lawyers to become eligible to take a bar examination in a U.S. state and are unavailable to lawyers that attend a United States law school.  Nonetheless, there are a few specialties that allow students to apply for and obtain L.L.M's in particular fields.  A specific L.L.M. specialty that withstood the test of time is an L.L.M. in Tax.  Both the L.L.M. in Tax and the William and Mary School of Law carry with them a substantial amount of prestige.  This should be a gold star on her biography.

And then there was uninformed scrutiny . . .

Apparently, William and Mary School of Law only offers L.L.M.'s to foreign lawyers who wish to practice in the United States.  There is no Tax L.L.M. program.  Picking up on this fact, commentators (I am being generous here) have been angrily accusing Rep. Bachmann of lying about her legal pedigree.  See here, here, and here.  They use phrases such as William and Mary does not and "never has" offered an L.L.M. in Tax law.

It is just plain wrong.  William and Mary School of Law used to offer an L.L.M. in Tax.  William and Mary recently put out a statement acknowledging her degree and alumnae status.  If you simply Google the relevant search terms you can find other attorneys claiming to have an L.L.M. in Tax form William and Mary in 1988.  E.g., here and here.  Either this is a massive conspiracy or she actually has the degree.  Another observer came to the same conclusion I did on her own.

Is she licensed to practice law?

The answer is yes, she was and currently appears to be licensed to practice law by the state of Minnesota.  Any attempt to suggest this is not true or odd that she might choose Minnesota is inherently false and uninformed.

But what about the IRS stuff?

According to the Wall Street Journal and the Atlantic she did represent the IRS in collections matters against taxpayers.  According to the WSJ article, because few matters were appealed there is little documentation from her time at the IRS from 1988-1992.  A note to readers, we likely will not see much in response to FOIA requests either as the relevant documents are likely attorney client privileged and/or contain personal information of taxpayers and will be protected from disclosure.  This era in Rep. Bachmann's life should be concerning for those supporting limited government. 

Surely government service, even for the IRS, is no bar to support from those seeking a limited government, but it certainly raises questions.  Rep. Bachmann acknowledges she was a tax attorney, but does not talk openly about her representation of the federal government.  On her Congressional website she states, ". . .I saw firsthand that our nation’s tax laws are hard to understand and undermine the country’s prosperity by imposing needlessly harsh penalties on work, savings, and investments."  If she contends she learned the evils of the tax code while working for the IRS, that is a narrative that can sell. 

Refusing to talk about her time at the IRS is the wrong decision, and forces me to remain skeptical.