UPDATED 10:29 p.m.  The Sixth Circuit Court has ordered the challengers to respond by 9 a.m. Tuesday — one day before oral argument is scheduled — to the government motion to dismiss. 


The Obama Administration, in a move that could end one of the challenges to the new federal health care law, urged the Sixth Circuit Court on Friday to dismiss a pending appeal and leave intact the government’s victory in a lower court.  In a motion to dismiss as moot, the government contended that the challengers in Thomas More Law Center, et al., v. Obama, et al. (Circuit docket 10-2388) have now lost — or never had — a legal right to pursue their challenge.

A three-judge panel of the Sixth Circuit is scheduled to hear that case next Wednesday.  The Administration’s motion suggested that the panel consider its mootness plea during that argument.  It also requested that, if the case is in fact dismissed as moot, the District judge’s ruling rejecting the constitutional challenge be left intact, rather than have it ordered vacated.

The main focus of the new filing was a change in the situation of one of the four individuals who had joined in the lawsuit filed by the Thomas More Law Center, a conservative legal advocacy group.  The right to sue (“standing”) of that individual,  Jann DeMars. had been conceded by government lawyers in a filing last Monday, although that filing said the issue was “a close one.”   DeMars, along with the Center and the other three individuals, had challenged the constitutionality of the new law’s mandate that virtually every American must have health insurance by 2014.

Earlier, when the case was in District Court in Michigan, DeMars had indicated that she does not have private health insurance, and that she was making significant “financial sacrifices” to enable herself and her children to have the insurance as the new law would require, if it were upheld in court.   Her declaration at that time listed instances of how she was cutting back, in order to “find an additional $700 a month in my already tight budget.”

On Friday, however, the government’s motion noted that, on Wednesday, the Center’s lawyers had “disclosed for the first time” to the Circuit Court that DeMars “in fact has had employer-provided insurance since October 2010,” and noted that that was before the challengers’ opening brief was filed in the Circuit Court.   DeMars, the government noted, had started buying health insurance through her employer in October 2010, at a cost of $304.94 a month.

According to the government motion, “this revelation renders DeMars’ appeal of the District Court’s judgment moot. Because she has insurance, DeMars cannot show that the minimum coverage provision will cause her any economic injury, much less that such injury is imminent.”   DeMars, it added, actually got insurance “at a fraction of the cost” she had said insurance would be.

The motion argued: “No court in any Affordable Care Act case has held that an insured individual has standing to bring a pre-enforcement challenge to the minimum coverage provision, and several courts have held that uninsured individuals who failed to allege present economic effect lack standing to sue.”

The motion then went on to argue that the other three individuals who sued in the case, as well as the Thomas More Center, could not keep the case alive with their claims.  The three individuals have made insufficient arguments about how the provision would have an impact on them, the motion contended, and the Center is not even claiming any injury to itself from that provision.    The motion also noted that, since the Center was suing on behalf of its own members, it did not have standing if none of its members do.   As to DeMars, the motion said, she did not become a member of the Center until after the lawsuit was filed; it argued that that was too late.

The Center’s lawyers have time before the Wednesday hearing to file a response, and presumably they will do so in an effort to keep the case from being dismissed.

Posted in Cases in the Pipeline, Featured, Health Care

Recommended Citation: Lyle Denniston, U.S. moves to end health care case (UPDATED), SCOTUSblog (May. 27, 2011, 1:02 PM), http://www.scotusblog.com/2011/05/u-s-moves-to-end-health-care-case/