Monday, May 9, 2011

Six things to look for tomorrow

It is now less than 22 hours until arguments begin in Richmond in Liberty University v. Geithner and Virginia v. Sebelius. Here are a few things to keep our eyes (or ears) on, roughly in their order of importance:

1. What is the panel? Of course, judges are different than legislators, and passing judgment on the constitutionality of the ACA is quite different from voting on it as a member of Congress. But in cases like this--where the law does not clearly dictate one outcome or the other, and the issue is deeply political and ideological--the personal political commitments of the judge are apt to matter. Thus, which Fourth Circuit judges are on the panel may be the most significant piece of information revealed tomorrow. The Fourth Circuit is now pretty strongly Democratic: Eight of the thirteen active judges are effectively Democratic appointees. (Judge Roger Gregory is technically a G.W. Bush appointee, but he was first appointed in a recess appointment by Clinton, and was nominated by Bush as part of compromise.) But a random draw does not assure a representative panel. And Judge Wilkinson, given his stature (and his commitment to federalism), could have a disproportionate influence on deliberations.

2. Which side is pushed harder? It is perilous to make too many inferences from what happens at oral argument. But the empirical work that has been done on the subject has pretty consistently demonstrated that judges ask more questions of the side they ultimately rule against. So, as a general matter, it will be worth watching which side gets the rougher treatment.

3. How much time is spent on severability? If the panel spends a good deal of time asking about the severability of the minimum coverage provision from the rest of the ACA, that obviously would be a bad sign for the federal government. For the severability is only relevant if the minimum coverage provision is unconstitutional.

4. How much time is spent on standing? Both the United States and two important amicus briefs have raised serious questions about whether Virginia has standing to challenge the minimum coverage provision. And in my humble opinion, the district court's standing analysis was simply wrong--or at least inconsistent with binding Supreme Court precedent. Thus, it will be interesting to see whether the court is interested in this issue. If Virginia's case is dismissed, then the only case left in the Fourth Circuit is the Liberty University case. There may not be any justiciability issues with that case, but it may not be attractive as Florida v. HHS for the Court to grant.

5. Which government argument does the Court focus on? The United States is making two distinct (or at least arguably distinct arguments) as to why the minimum essential coverage provision is within Congress's authority to regulate interstate commerce: (1) that the regulated activity is obtaining health care services without insurance, and a decision about how to finance that care, both of which are economic or commercial activities, and thus within the commerce power under a straightforward application of Lopez and Morrison; and (2) even if the activity regulated by ACA 1501(b) is not itself economic or commercial in nature, it is an integral component of the ACA's broader regulation of the health insurance and health care services markets, and thus is "necessary and proper" to a comprehensive scheme that plainly regulates interstate commerce. These arguments have important doctrinal differences. It will be interesting to see to which the judges seem more receptive (if they are receptive at all).

6. How much do the judges ask about a "limiting principle"? At the most basic level, you could say this case comes down to whether the United States can convince the judges that upholding the ACA does not effectively mean that Congress's legislative authority is limitless--that the Constitution's system of enumerated federal powers is rendered a nullity. To what degree do the judges press General Katyal on explaining the government's "limiting principle," the principle that assures that upholding the ACA does not mean the federal government effectively has a general police power? What is General Katyal's answer? And do the judges seem convinced?

These are just the six that came to mind. There are other important issues, to be sure. But the answers to these questions will tell us much about which way the decision is likely to come down.