Sixth Circuit Judge Jeffrey Sutton
Tomorrow, the Sixth Circuit will become the second appeals court to consider a constitutional challenge to the Affordable Care Act’s provision requiring most Americans to either carry insurance or pay slightly more income taxes. The three judge panel hearing tomorrow’s case includes Judge Boyce Martin, a reliably progressive vote, and Judge Jeffrey Sutton, a hardline conservative with a long history of states rights and GOP activism. In other words, the result in this case could come down to the panel’s third member, an obscure trial judge named James Graham with far less of a record on constitutional issues.
Despite this ideologically divided panel, the court has hinted strongly that it will dismiss the case without considering the merits at all. Here are five possible outcomes for this case, ordered from the narrowest resolution to the most sweeping:
No one is allowed to sue to strike down a law simply because they don’t like it; any plaintiff must first show that the law has actually injured them in some way. In this case, the district court permitted the case to move forward because one of the plaintiffs alleged that they were currently rearranging their finances to be able to afford insurance when the law goes into effect in 2014, thus this plaintiff has somehow been injured by the ACA’s insurance tax even though this provision hasn’t even gone into effect yet. Last week, however, the plaintiffs’ attorneys alerted the court that she decided to go ahead and purchase insurance seven months ago — long before she can credibly blame the ACA for causing her to become insured. DOJ almost immediately moved the court to dismiss the case as moot because there is no longer a plaintiff who is actually subject to the law.
If the court grants DOJ’s motion, which seems likely, it will be interesting to see whether they also levy some harsh words or even a threat of sanctions against the plaintiffs’ attorneys. Nearly two dozen briefs were filed in this case, and each judges’ chambers has probably been burning the midnight oil for weeks to prepare for this very high-profile case. If the attorneys knew that their client had mooted the case months ago but they failed to inform the court until many, many hours of work later, the judges will not be amused.
- Case Dismissed as Premature — Standing or Ripeness
Because the plaintiffs challenge a law that doesn’t take effect until 2014, it is not entirely clear that they — or anyone else for that matter — has been harmed in any way by the ACA. The court previously asked the parties to file additional briefs focusing on whether the plaintiffs need to pack up their legal briefs and come back in a few years when the ACA has taken full effect, which is a strong indication that the court may dismiss the case on these grounds. A decision on these “standing” or “ripeness” grounds would be significantly broader than decision dismissing the case as moot, because a standing or ripeness decision would likely shut down all ACA litigation until 2014 or later, while a mootness decision might allow other cases to move forward.
- Case Dismissed as Premature — Tax Anti-Injunction Act
The Fourth Circuit recently noted that a similar case may need to be dismissed because of the Tax Anti-Injunction Act which forbids a court from “restraining the assessment or collection of any tax,” although it does permit courts to order the government to refund a taxpayer who has already paid a tax. Because no one has actually paid a tax that doesn’t take effect until 2014, court could dismiss the case on these grounds.
- Facial vs. As-Applied Challenges
The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim that the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, however, a party must show that “no set of circumstances exists under which the Act would be valid.”
In this case, the plaintiffs claim that because they have decided not to take a particular action — buying health insurance — they are somehow immune from federal commercial regulation. However, even if the court were to accept this exceedingly questionable theory, it is not actually the case that every single person in the country has not at some point participated in the health insurance market. Accordingly, the court could require all challenges to the ACA to be brought on an as-applied basis, drastically limiting the potential impact of these lawsuits.
Perhaps the least likely outcome in this case, in light of the court’s repeated requests for the parties to brief procedural issues, is that the court will actually reach the merits. Judge Sutton, who is widely perceived as actively campaigning for a seat on the Supreme Court, is likely to be especially uninterested in deciding a constitutional question that will either guarantee that Senate Democrats would prevent him from being confirmed or that Republicans would never nominate him in the first place.