Marc Ambinder, the politics editor of The Atlantic, writes,
Reading through the complaint filed by 13 state attorneys general, against the health reform legislation, reader @calchala was struck by something that wasn’t there: the lack of any specific case citation to buttress the underlying claim that it is unconstitutional for the federal government to impose on individuals a mandate to buy health care and to punish those who don’t by levying a fine.
The reader might as well have been struck by the lack of a video in which the states’ lawyers deliver their oral argument. Case citations buttressing the underlying claims are generally not included in complaints, at least in federal court. Just as oral argument is for oral argument, citation of precedent is for briefs supporting motions for summary judgment and the like. That’s standard federal practice; see, for instance, the Complaint in MGM v. Grokster, just to give an example of a famous recent case in which the Complaint was easily available. A complaint, Rule 8 of the Federal Rules of Civil Procedure tells us, “must contain”
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
And federal practice is that the “short and plain statement of the claim showing that the pleader is entitled to relief” is a description of the facts as the plaintiff sees them, coupled with a statement of which legal rules were allegedly violated (e.g., the First Amendment, or some statute, or some common-law doctrine) — not a legal argument providing the foundation for the plaintiff’s legal theory. Occasionally you might see a case cited in a complaint, for instance if the claim for relief is brought under a common-law doctrine, and the case provides the commonly known name for that doctrine. And a few complaints do include lots of legal argument, though those tend to look unprofessional or grandstanding. But complaints without case citations are perfectly normal. Legal argument and the citations supporting it are for briefs, not complaints.
Now none of this says that the state lawsuit will or should ultimately prevail. But the absence of case citations is irrelevant, and it seems like a mistake for the Atlantic post to suggest otherwise. (I do think that the post, with its statement of what a reader was “struck by,” implicitly endorses the view that the circumstances are striking. That wouldn’t have been so if Mr. Ambinder had followed the reader’s observation with a question about whether the reader’s statement was correct, or had simply been reporting an assertion made by some prominent person that was newsworthy simply because that person had made it. But in this context, the post appears to endorse @calchala’s observation.)
Thanks to Victor Steinbok for the pointer.
UPDATE: The Wall Street Journal Law Blog makes a similar error, though one that’s more tangential to their point: “The [White House] officials didn’t tip their hand much [in saying the lawsuits lack merit], but did give some clue as to what cases might get cited in their answer and subsequent motions.” Cases are generally not cited in answers (see, for instance, this example), though of course they would be cited in the briefs supporting subsequent motions. Thanks to commenter threesmommy for the pointer.
FURTHER UPDATE: Steve Benen at Washington Monthly echoes the point from the Ambinder post (though also provides more substantive criticisms of the lawsuit).