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Commonwealth of Virginia V. Kathleen Sebelius

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Commonwealth of Virginia V. Kathleen Sebelius Case 3:10-cv-00188-HEH Document 96 Filed 09/23/10 Page 1 of 48 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division COMMONWEALTH OF VIRGINIA, ) ex rel. Kenneth T. Cuccinelli, II, in his official ) capacity as Attorney General of Virginia, ) ) Plaintiff, ) ) Civil Action No. 3:10-cv-00188-HEH v. ) ) KATHLEEN SEBELIUS, Secretary of the ) Department of Health and Human Services, ) in her official capacity, ) ) Defendant. ) ) MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Case 3:10-cv-00188-HEH Document 96 Filed 09/23/10 Page 2 of 48 Table of Contents Introduction..................................................................................................................................... 1 Response to plaintiffs’ statement of material facts ......................................................................... 4 Argument ........................................................................................................................................ 6 I. Congress validly exercised its commerce power to enact the minimum coverage provision, because the provision is integral to the ACA’s larger regulatory scheme .........7 II. Congress validly exercised its commerce power to enact the minimum coverage provision, because the provision regulates conduct with substantial effects on interstate commerce .......................................................................................................... 13 III. The minimum coverage provision is a valid exercise of Congress’s independent power under the General Welfare Clause ......................................................................... 19 IV. The Government’s affirmative defenses defeat Virginia’s claim ..................................... 25 A. The Secretary of the Treasury is a necessary and indispensable party ................. 25 B. This Court lacks jurisdiction over Virginia’s claim .............................................. 28 V. Virginia misstates the remedies that are available to it ..................................................... 29 A. Virginia misstates the law governing severability ................................................ 29 B. Virginia is not entitled to a permanent injunction ................................................ 33 Conclusion .................................................................................................................................... 37 1 Case 3:10-cv-00188-HEH Document 96 Filed 09/23/10 Page 3 of 48 Table of Authorities Cases: Page: A. Magnano Co. v. Hamilton, 292 U.S. 40 (1934) ................................................................................................................ 22 Adventure Res., Inc. v. Holland, 137 F.3d 786 (4th Cir. 1998) .......................................................................................... 20, 21 Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) .............................................................................................................. 32 Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320 (2006) ........................................................................................................ 29, 30 Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25 (1996) .................................................................................................................. 7 Bd. of Trs. of Univ. of Ill. v. United States, 289 U.S. 48 (1933) ................................................................................................................ 20 Berman v. Parker, 348 U.S. 26 (1954) ................................................................................................................ 18 Bob Jones Univ. v. Simon, 416 U.S. 725 (1974) ........................................................................................................ 22, 29 Burroughs v. United States, 290 U.S. 534 (1934) ................................................................................................................ 9 Charles C. Steward Machine Co. v. Davis, 301 U.S. 548 (1937) .............................................................................................................. 24 Child Labor Tax Case, 259 U.S. 20 (1922) .......................................................................................................... 21, 23 Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909 (D.C. Cir. 2008) .............................................................................................. 35 Covenant Media of S.C. v. City of N. Charleston, 493 F.3d 421 (4th Cir. 2007) .................................................................................................. 6 DeWitt v. Hutchins, 309 F. Supp. 2d 743 (M.D.N.C. 2004) ................................................................................. 27 Case 3:10-cv-00188-HEH Document 96 Filed 09/23/10 Page 4 of 48 Cases: Page: In re Debs, 158 U.S. 564 (1895) .............................................................................................................. 17 Delta Fin. Corp. v. Paul D. Comanduras & Assocs., 973 F.2d 301 (4th Cir. 1992) ................................................................................................ 28 Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994) .............................................................................................................. 23 eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) .............................................................................................................. 34 Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010) .................................................................................................... 30, 31 Gardner v. Gartman, 880 F.2d 797 (4th Cir. 1989) ................................................................................................ 26 Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) .......................................................................................... 3, 6, 9 Golden Gate Rest. Ass'n v. City & County of San Francisco, 512 F.3d 1112 (9th Cir. 2008) .............................................................................................. 35 Gonzales v. Raich, 545 U.S. 1 (2005) ........................................................................................................... passim Head Money Cases, 112 U.S. 580 (1884) .............................................................................................................. 25 Hill v. Wallace, 259 U.S. 44 (1922) ................................................................................................................ 23 Hodel v. Indiana, 452 U.S. 314 (1981) ................................................................................................................ 9 Hoffman v. Hunt, 126 F.3d 575 (4th Cir. 1997) ................................................................................................ 15 Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796) ................................................................................................... 25 INS v. Chadha, 462 U.S. 919 (1983) .............................................................................................................. 31 Case 3:10-cv-00188-HEH Document 96 Filed 09/23/10 Page 5 of 48 Cases: Page: Knowlton v. Moore, 178 U.S. 41 (1900) .......................................................................................................... 22, 24 License Tax Cases, 72 U.S. (5 Wall.) 462 (1867) ................................................................................................ 22 Loewe v. Lawlor, 208 U.S. 274 (1908) .............................................................................................................. 17 Luxton v. North River Bridge Co., 153 U.S. 525 (1894) .............................................................................................................. 11 M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) ............................................................................................... 10 Massachusetts v. Mellon, 262 U.S. 447 (1923) .............................................................................................................. 28 McCowen v. Jamieson, 724 F.2d 1421 (9th Cir. 1984) .............................................................................................. 26 Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010) ...........................................................................................................35 Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174 (4th Cir. 2005) ................................................................................................ 33 Nebraska v. EPA, 331 F.3d 995 (D.C. Cir. 2003) .............................................................................................. 19 New York v. United States, 505 U.S. 144 (1992) ......................................................................................................... 30, 32 Nourison Rug Corp. v. Parvizian, 535 F.3d 295 (4th Cir. 2008) ................................................................................................ 27 Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir. 1992) .......................................................................................... 11, 18 Owens-Illinois, Inc. v. Meade, 186 F.3d 435 (4th Cir. 1999) .........................................................................................
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