Tuesday, August 10, 2010

Reading the tea leaves: Why I think Judge Hudson will declare the ACA unconstitutional

Judge Hudson's ruling last week denying the United States's motion to dismiss Virginia's complaint was technically no more than that -- a refusal to conclude that Virginia had failed to advance a legally viable cause of action. (I'm setting aside the standing question here, which still befuddles me.) In other words, Judge Hudson held no more than that Virginia's claims were plausible. His opinion, though, shed some important light on how he is apt to decide the case once we have motions for summary judgment.

What are the clues?

* First, Judge Hudson was willing to find that Virginia had Article III standing, even though this seems legally dubious (as I explained yesterday). A judge who was likely to ultimately rule in favor of the United States would presumably have found this case non-justiciable. This would have been an easy way out legally, and it would have saved the judge the hassle of having to resolve a very difficult, controversial case on the merits. (Procedural grounds are often a safe refuge for judges trying to make controversial cases go away.) Holding that Virginia has standing is a pretty decent indication that the judge wants to reach the merits, and thus is inclined towards Virginia's claims.

* Second, Judge Hudson described the Commerce Clause question in the following terms: "The congressional enactment under review -- the Minimum Essential Coverage Provision -- literally forges new ground and extends Commerce Clause powers beyond its [sic] current high waterwark." (P. 18) Later, he likewise writes that "[n]ever before has the Commerce Clause and the associated Necessary and Proper Clause been extended this far." (P. 25) These are plausible characterizations, but they clearly have adopted the framing urged by Virginia and its amici. From the United States's perspective, ACA 1501 is not "unprecedented." Rather, it is yet another example (many of which appear in the United States Code) of Congress regulating certain noncommercial activities because doing so is critical to the success of a broader regulatory scheme, which scheme clearly regulates interstate commerce. To see the minimum coverage provision as "forging new ground" and "beyond the current high watermark" is to go more than half the way to finding it beyond the commerce power. It is to adopt Virginia's narrative of the issue.

* Finally, Judge Hudson does not seem to say nearly as much about the taxing power question, other than to note that "is a much closer question." (P. 25) (This comment also cements the impression that the judge believes the individual mandate exceeds Congress's commerce power.) But there is one curious point in the opinion. On pp. 30-31, the judge appears to evaluate the mandate separately from the charge (tax, penalty, or whatever you wish to call it). And this, again, is the prism through which one must see the issue in order to rule for Virginia. From the United States's perspective (as Jack Balkin has explained), there is no mandate separate from the charge. It is one unified legal provision: an exaction imposed on a particular choice. The passage here -- and I may well be reading too much into it -- seems to view the mandate as having a separate, independent legal force. Making this analytic move is, again, stepping more than half way to finding 1501 outside the taxing power.

Of course, this is pure conjecture. At this point, the court has held no more than that Virginia's claims are "legally viable." But the way in which Judge Hudson has chosen to characterize those claims gives us some decent reasons to believe that, when he ultimately reaches the merits, he will hold that the minimum coverage provision is unconstitutional.