The two pro se plaintiffs suing the government over the health care reform bill are asking an appeals court for an injunction against it. They also have moved to revoke an extension of time that the chief clerk for the Third Circuit Court of Appeals granted to the government, saying that the clerk exceeded her authority under court rules.

Grounds for Enjoining the Health Care Reform Bill

The two plaintiffs, Nick Purpura and Don Laster, want to stop the government from carrying out the health care reform bill (HR 3590). They claim “irreparable injury,” in that the government is already carrying out parts of the bill, and violating citizens’ constitutional rights while doing it. Specifically they say that the bill infringes on powers that do not appear in the long list in Article I, Section 8 of the Constitution, and not forbidden to the States. Amendment 10 reserves such powers to the States or to the people.

In addition, Purpura and Laster have always held (see Purpura v. Sebelius) that the health care reform bill will ruin the health insurance market. The McKinsey Study, that shows that 30 percent of employers would drop health care insurance for their employees, gives the best evidence yet of such damage. The Obamacare Waiver phenomenon gives even more evidence.

Grounds for Appeal

The James A. Byrne Federal Courthouse, Philadelphia, PA, home of the Third Circuit Court of Appeals. More than one health care reform bill case is on appeal here. Photo: US Department of Justice

This case against the health care reform bill is on appeal after Judge Freda L. Wolfson of the New Jersey District Court dismissed the complaint for lack of standing. The plaintiffs now cite Bond v. United States, decided on June 16, to show that they do have standing. Anthony Kennedy, writing for the 9-0 court, said that any citizen has a stake in protecting “the constitutional balance between the National Government and the States.” Justice Ruth Bader Ginsberg, in a separate opinion, wrote that a citizen gains standing by suffering an adverse effect, even if the federal government is technically violating a State’s rights.

Nor is this the only way that the health care reform bill violates their rights, say Purpura and Laster. The Tenth Amendment ground is one of fifteen counts that they assert against the bill. They also cite its origination in the Senate, its provision for an armed “Health Care Ready Reserve Corps” with an appropriation for four years, subjecting people’s medical secrets to “unreasonable searches and seizures,” and preferential treatment of “grandfathered-in” religious “sect[s and] division[s],” among other faults.

Extension of time

The plaintiffs also filed a formal motion to remove an extension of time that Chief Clerk Marcia Waldron granted to the government. The Third Circuit’s Local Appellate Rules allow the clerk to extend time to file a brief—but for up to fourteen days. Ms. Waldron extended the Department of Justice’ time for thirty days.

In a separate letter to Waldron, the plaintiffs suggested that the Department of Justice did not give good enough reasons for an extension of time. They said in effect that they were too busy preparing for briefing and oral argument in four other cases on the health care reform bill. Local Appellate Rule 31.4 says:

Generalities, such as that the purpose of the motion is not for delay or that counsel is too busy, are not sufficient.

All that the DOJ counsel did, was to say it was too busy, and to say why it was too busy. But extensions of time ought to involve something more important, like having to wait to develop more evidence that is not yet available. Evidence isn’t at issue in this case, because facts are not at issue. The law and the Constitution are at issue.

Whenever a judge or clerk grants an extension by telephone, the party getting the extension must let the other party know in writing within seven days. The Third Circuit now proposes to change that rule. The proposed version says that users of the electronic docketing system can expect an automatic notice of the change. Counsel must let non-users of that system know about any extension within the seven days, so that they will still hear about the extension. Purpura complained to your editor that he would not have known about the extension if he hadn’t called the clerk’s office to ask after another matter, namely why so many judges have recused themselves from the case.

Judges ducking the case

The Third Circuit Court of Appeals has fourteen active judges. According to the latest information available (from Wikipedia; the judge list at the Third Circuit site will not load), these judges include one Carter appointee, one Reagan appointee, five each Clinton and Bush Younger appointees, and two Obama appointees. The court also has nine senior (semi-retired) judges. They include a Johnson appointee, two Nixon appointees, four Reagan appointees, and one appointee each by Bush Elder and Bush Younger. (On June 30, Judge Maryann Trump Barry of Newark, NJ will move from “active” to “senior” and leave a vacancy.) A senior judge is a part-time judge and thus carries a lighter caseload. But the chief judge might still assign senior judges to hear any appeal, if they are willing.

A number of these judges—the clerk’s office refuses to say how many or which ones—have ducked the case. (The official term is “to recuse oneself.”) The two Obama appointees might have had to duck it on account of Count Six. That count asserts that Obama is not a natural-born citizen, and thus is legally unqualified to sign anything into law—or appoint anyone to any court. But that doesn’t explain why any of the other judges have ducked the case. The recusals had to come from the actives; the seniors would be up for the case only if they volunteered for the assignment lottery.

Related:

• Health care reform bill appeal delayed
• Health care reform bill in new peril
• DOJ wants more time
• Health care reform bill: another appeal

Featured image: the Constitution of the United States. Photo: National Archives.

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