Sunday, January 30, 2011

Florida v. HHS: a preview of tomorrow's decision

Only Judge Vinson and a few others who work in his Penascola courthouse know what tomorrow's decision will hold. But we have seen and heard enough from the judge to make a pretty good guess as to what it will probably look like. Here is what I expect:

1. The ACA's Medicaid provisions are constitutional. True, the ACA imposes a significant expansion of coverage on the states, forcing them to extend their programs to all non-elderly adults up to 133 percent (or 138 percent) of the federal poverty level. True, the states are currently in a world of budgetary hurt, such that leaving Medicaid is not practically feasible. And true, the Supreme Court (most notably in South Dakota v. Dole) has suggested that, in some circumstances, federal spending conditions can be so coercive as to cross the line into compulsion, and thus constitute an impermissible "commandeering" of state governments. But consider the following: (1) the Supreme Court has never actually invalidated a federal spending condition on this ground, and it has suggested that the whole idea is incoherent; (2) the states remain, at least as a formal matter, perfectly free to withdraw from Medicaid; (3) indeed, several of the plaintiff states (most notably Texas) have actually considered withdrawing from Medicaid in the past few months; and (4) finding that spending conditions like those in the ACA are "coercive" would create a host of problems for courts in their application of constitutional law, not the least of which is that it is almost impossible to conceive of a judicially manageable standard for when such conditions constitute compulsion. Finding a spending condition "coercive" is plausible under existing law, but it seems like the sort of ruling (given its implications) that a district court would let a higher court do for the first time in the Nation's history. For all these reasons, Judge Vinson is apt to say that, though the ACA may put a very difficult choice to the plaintiff states, it is a choice nonetheless, at least according to the Constitution. And so long as it remains a formal choice, it is not a commandeering.

2. The minimum essential coverage requirement is unconstitutional. Judge Vinson has already held that 1501(b) cannot be justified as an exercise of Congress's taxing power, as Congress intended the provision to constitute a regulatory penalty, not a tax. The only remaining question is whether it is within Congress's authority to regulate interstate commerce. Here, Judge Vinson's opinion denying the federal government's motion to dismiss (as well as his comments at oral argument in December) is quite revealing. In his opinion, Judge Vinson wrote that the mandate "is simply without prior precedent." More specifically, he wrote that "[p]eople have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake.
Rather, it is based solely on citizenship and on being alive." This means that Judge Vinson has concluded that (a) the activity-inactivity distinction has salience in this context, (b) the minimum coverage provision regulates inactivity, and thus (c) Congress cannot justify 1501(b) as regulating an individual's "activity" of making an economic decision as to how to finance her health care. Consequently, the only basis for upholding the mandate would be that, even though it regulates pure inactivity, it is an essential component of the ACA's comprehensive regulation of the markets for health insurance and health care services, and thus is a "Necessary and Proper" means to the regulation of "commerce among the States." But here, too, Judge Vinson has indicated that, in his view, the mandate is unprecedented. Even when using the Commerce and Necessary and Proper Clauses in combination, he has emphasized, never has Congress forced individuals to engage in commercial transactions as a means of regulating interstate commerce. Rather, Judge Vinson has seemed quite sympathetic to the notion that Congress, in its regulation of interstate commerce, cannot reach persons who have taken no voluntary step to expose themselves to the regulatory scheme--whether through the Commerce Clause alone or as augmented by the Necessary and Proper Clause. In this sense, the minimum coverage requirement goes beyond what the Supreme Court has ever before condoned. And to Judge Vinson, this appears a sufficient basis for declaring 1501(b) unconstitutional.

Again, this is no more than a guess. But I think most people who have followed this case closely would be surprised if Judge Vinson's opinion veers too much from this basic outline.