661 F.3d 1 (D.C. Cir. 2011), 11-5047, Seven-Sky v. Holder

Docket Nº:11-5047.
Citation:661 F.3d 1
Opinion Judge:SILBERMAN, Senior Circuit Judge:
Party Name:Susan SEVEN-SKY, also known as Susan Sevensky, et al., Appellants v. Eric H. HOLDER, Jr., et al., Appellees.
Attorney:Edward L. White III, pro hac vice, argued the cause for appellants. With him on the briefs were Jay Alan Sekulow, Colby M. May, Miles Landon Terry, and James M. Henderson Sr. David B. Kopel was on the brief for amici curiae Independence Institute in support of appellants. Dale L. Wilcox and Micha...
Judge Panel:Before: KAVANAUGH, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges. Opinion for the Court filed by Senior Circuit Judge SILBERMAN, with whom Senior Circuit Judge EDWARDS concurs. Concurring opinion filed by Senior Circuit Judge EDWARDS. Opinion dissenting as to jurisdiction and no...
Case Date:November 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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661 F.3d 1 (D.C. Cir. 2011)

Susan SEVEN-SKY, also known as Susan Sevensky, et al., Appellants

v.

Eric H. HOLDER, Jr., et al., Appellees.

No. 11-5047.

United States Court of Appeals, District of Columbia Circuit

November 8, 2011

Argued Sept. 23, 2011.

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Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00950).

Edward L. White III, pro hac vice, argued the cause for appellants. With him on the briefs were Jay Alan Sekulow, Colby M. May, Miles Landon Terry, and James M. Henderson Sr.

David B. Kopel was on the brief for amici curiae Independence Institute in support of appellants.

Dale L. Wilcox and Michael Bekesha were on the brief for amicus curiae Judicial Watch, Inc. in support of appellants.

Lawrence J. Joseph was on the brief for amici curiae American Physicians & Surgeons, Inc., et al. in support of appellants.

Paul D. Clement, Erin E. Murphy, Louis F. Hubener, Deputy Solicitor General, Office of the Attorney General for the State of Florida, Bill Cobb, Deputy Attorney General for Civil Litigation, Office of the Attorney General for the State of Texas, Luther Strange, Attorney General, Office of the Attorney General for the State of Alabama, Gregory F. Zoeller, Attorney General, Office of the Attorney General for the State of Indiana, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, William J. Schneider, Attorney General, Office of the Attorney General for the State of Maine, Bill Schuette, Attorney General, Office of the Attorney General for the State of Michigan, Jon Bruning, Attorney General, Office of the Attorney General for the State of Nebraska, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Marty J. Jackley, Attorney General, Office of the Attorney General for the State of South Dakota, Michael DeWine, Attorney General, Office of the Attorney General for the State of Ohio, Thomas W. Corbett, Jr., Acting Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Robert M. McKenna, Attorney General, Office of the Attorney General for the State of Washington, and J.B. Van Hollen, Attorney General, Office of the Attorney General for the State of Wisconsin. Katherine J. Spohn, Special Counsel to the Attorney General, Office of the Attorney General for the State of Nebraska, entered an appearance.

Robert A. Levy, Ilya Shapiro, Hans Bader, Steven J. Lechner, Timothy Sandefur, Charles J. Cooper, David H. Thompson, Geoffrey D. Talmon and Brian Koukoutchos were on the brief for amici curiae Cato Institute, et al. in support of appellants.

Patrick T. Gillen was on the brief for amicus curiae CatholicVote.org.

Grant M. Lally and Deborah N. Misir were on the brief for amicus curiae Caesar Rodney Institute in support of appellants.

Beth S. Brinkmann, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellees. With her on the briefs were Tony West, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Mark B. Stern, Alisa B. Klein, Samantha L. Chaifetz and Dina B. Mishra, Attorneys. R.

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Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Rochelle Bobroff was on the brief for amici curiae American Association of People with Disabilities, et al. in support of appellees.

Ian Millhiser was on the brief for amici curiae American Nurses Association, et al. in support of appellees.

Stacy Canan and Michael Schuster were on the brief for amicus curiae AARP in support of appellees.

Marcia D. Greenberger and Melissa Hart were on the brief for amici curiae The National Women's Law Center, et al. in support of appellees.

Jefrey A. Lamken and Robert K. Kry were on the brief for amici curiae Law Professors Barry Friedman, et al. in support of appellees.

Martha Coakley, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, and Carol Iancu, Assistant Attorney General, were on the brief for amicus curiae Commonwealth of Massachusetts in support of appellees.

Andrew J. Pincus, Charles A. Rothfeld, Michael B. Kimberly and Paul W. Hughes were on the brief for amici curiae Constitutional Law Professors in support of appellees.

Elizabeth B. Wydra was on the brief for amicus curiae Constitutional Accountability Center in support of appellees.

Patrick J. Szymanski, Judith A. Scott, Walter Kamiat, Mark Schneider, and Scott Kronland were on the brief for amici curiae Service Employees International Union, et al. in support of appellees.

Hadrian R. Katz and Matthew A. Eisenstein were on the brief for amici curiae Economic Scholars in support of appellees.

Catherine E. Stetson, Dominic F. Perella, Melinda Reid Hatton, and Jeffrey G. Micklos were on the brief for amici curiae American Hospital Association, et al. in support of appellees.

Douglas F. Gansler, Attorney General, Office of the Attorney for the State of Maryland, John B. Howard Jr., Deputy Attorney General, Joshua N. Auerbach, Assistant Attorney General, Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, Travis LeBlanc, Special Assistant Attorney General, George C. Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Joseph R. Biden, III, Attorney General, Office of the Attorney General for the State of Delaware, Irvin B. Nathan, Attorney General, Office of the Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, David M. Louie, Attorney General, Office of the Attorney General for the State of Hawaii, Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, John R. Kroger, Attorney General, Office of the Attorney General for the State of Oregon, and William H. Sorrell, Attorney General, Office of the Attorney General for the State of Vermont, were on the brief for amici curiae State of Maryland, et al. in support of appellees.

Alan B. Morrison was on the brief for amici curiae Mortimer Caplin & Sheldon Cohen in support of appellees.

Robin S. Conrad, K. Lee Blalack II, and Brian Boyle were on the brief for amicus curiae Chamber of Commerce of the United States of America in support of neither party.

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Before: KAVANAUGH, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge SILBERMAN, with whom Senior Circuit Judge EDWARDS concurs.

Concurring opinion filed by Senior Circuit Judge EDWARDS.

Opinion dissenting as to jurisdiction and not deciding the merits filed by Circuit Judge KAVANAUGH.

SILBERMAN, Senior Circuit Judge:

The district court rejected appellants' challenge to the Patient Protection and Affordable Care Act. They appeal. Despite questions raised as to our subject matter jurisdiction, we conclude we have jurisdiction, and we affirm the district court's conclusion that the Act is constitutional.

I.

Since so much has already been written by our sister circuits about the issues presented by this case— which will almost surely be decided by the Supreme Court— we shall be sparing in adding to the production of paper.

Suffice it to say that the Affordable Care Act sought to reform our nation's health insurance and health care delivery markets with the aims of improving access to those markets and reducing health care costs and uncompensated care. Other courts of appeals have described its provisions at length. See Thomas More Law Ctr. v. Obama, 651 F.3d 529, 534-35 (6th Cir.2011); Florida v. U.S. Dep't of Health and Human Servs., 648 F.3d 1235, 1249-62 (11th Cir.2011).

This suit, like others, involves a challenge to the " minimum essential coverage provision," which requires all " applicable individual[s]" to purchase and maintain " minimum essential coverage" — i.e., required essential health benefits in an insurance plan— for each month beginning in January 2014. This requirement is commonly called the " individual mandate." Any " taxpayer" who " fails to meet the requirement" must pay a " shared responsibility payment," labeled a " penalty," which will be calculated by using the lesser of either a percentage of the taxpayer's income or the national average premium for the lowest-level plan providing " minimum essential coverage." 1

Congress made specific findings why, in its judgment, the individual mandate regulates commerce.2 Congress determined that decisions about whether and when to purchase health insurance, and how to pay for health care services, are inherently economic. And Congress found that without the mandate, uninsured individuals, in the aggregate, would consume costly health care services and pass on those costs to other market participants. Without the mandate, in Congress's view, other reforms— namely prohibitions on denying health insurance coverage to individuals with pre-existing medical conditions (the " guaranteed issue requirement" ) or using an individual's medical history to justify higher insurance premiums (the " community rating requirement" )— would increase average premiums, exacerbate adverse selection problems, and discourage individuals from obtaining coverage until they were sick.

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Appellants, four United States citizens and federal taxpayers, seek declaratory and injunctive relief to prevent various U.S. Government officials and agencies from enforcing the minimum essential coverage provisions. They argue that the mandate exceeds Congress's authority under the...

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