On June 1, an ideologically divided panel of the United States Court of Appeals for the Sixth Circuit is scheduled to hear oral arguments in a lawsuit challenging the Affordable Care Act. Last Thursday, however, the court sent an unusual letter asking the parties to brief three procedural questions that might lead the court to dismiss the case without reaching the merits of whether the ACA is constitutional:
a. Have the plaintiffs alleged an injury in fact? If not, have they alleged an “imminent injury” creating a case of actual controversy under Article III and the Declaratory Judgment Act, even though they filed their complaint more than three years before the effective date of the challenged provisions?
b. If the plaintiffs do not purchase minimum essential coverage and do not pay the penalty, what available enforcement mechanisms are available to the IRS? What role, if any, do IRS enforcement mechanisms play in the injury and hardship requirements?
Is the Commerce Clause challenge a facial challenge and, if so, must the plaintiffs prove “that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987)?
The first two questions essentially concern whether this lawsuit was brought prematurely. The Constitution prevents plaintiffs from challenging a law unless their have experienced an “injury in fact” — that is, unless the law has actually harmed them in some meaningful way. But the ACA litigation challenges a provision that requires some people to pay slightly more taxes beginning in 2014. Because 2014 hasn’t happened yet, the court may be poised to dismiss the lawsuit because the plaintiffs cannot show that they have been injured by it now or that it will affect them when it takes effect in two and a half years.
The third question concerns whether the plaintiffs in this case challenged the ACA in the proper way. Generally speaking, 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. The Sixth Circuit may be poised to say that the ACA survives a facial challenge, but that it could possibility be challenged by certain plaintiffs on an as applied basis.
This kind of letter instructing the parties to brief additional questions is not unheard of, but it is somewhat unusual. It indicates that the court is troubled by these three procedural questions — or even, potentially, that the court is looking for a way to make the case go away. In either event, it opens up the strong possibility that the Sixth Circuit will dismiss this case without reaching the merits of whether the ACA is constitutional.