SEVEN-SKY v. HOLDER

No. 11-5047.

661 F.3d 1 (2011)

Susan SEVEN-SKY, also known as Susan Sevensky, et al., Appellants v. Eric H. HOLDER, Jr., et al., Appellees.

United States Court of Appeals, District of Columbia Circuit.

Decided November 8, 2011.


Attorney(s) appearing for the Case

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. 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.

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.

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