Monday, January 3, 2011
Two more amicus briefs in TMLC v. Obama
Two other amicus curiae briefs have been filed in the Sixth Circuit in support of the appellants (Thomas More Law Center et al.) in Thomas More Law Center v. Obama. One comes from the CATO Institute and Professor Randy Barnett, which you can find here. The other was submitted by the Washington Legal Foundation and twelve Republican members of the House of Representatives (authored in part by Professor Ilya Somin of George Mason), which you can find here.
Wednesday, December 29, 2010
Amicus brief in TMLC v. Obama
Professor Steven J. Willis (University of Florida College of Law) has filed an amicus curiae brief in support of the appellants in Thomas More Law Center v. Obama. The brief primarily addresses whether the minimum coverage requirement can be justified constitutionally as a tax. And it analyzes not so much whether 1501(b) exceeds the taxing power, but rather whether it is effectively prohibited by the Constitution because it is not a duty, impost, excise tax, or income tax -- the only forms of taxation (according to Professor Willis) authorized by the Constitution. You can access the brief here.
Professor Willis, along with co-author Nakku Chung, has written two interesting articles, both published in Tax Notes, that explore these issues in much greater depth: Of Constitutional Decapitation and Healthcare, 128 Tax Notes 169 (July 12, 2010), and Oy Yes, the Healthcare Penalty is Unconstitutional, 129 Tax Notes 725 (Nov. 8, 2010).
Again, Thomas More Law Center v. Obama is currently before the United States Court of Appeals for the Sixth Circuit, and is the furtherest along of any of the cases in which a judge has reached the merits of the constitutionality of the minimum coverage provision.
Professor Willis, along with co-author Nakku Chung, has written two interesting articles, both published in Tax Notes, that explore these issues in much greater depth: Of Constitutional Decapitation and Healthcare, 128 Tax Notes 169 (July 12, 2010), and Oy Yes, the Healthcare Penalty is Unconstitutional, 129 Tax Notes 725 (Nov. 8, 2010).
Again, Thomas More Law Center v. Obama is currently before the United States Court of Appeals for the Sixth Circuit, and is the furtherest along of any of the cases in which a judge has reached the merits of the constitutionality of the minimum coverage provision.
The severability arguments in Florida v. HHS
Santa Clara University Graduate Fellow Brandon Douglass has prepared this helpful summary of the parties' respective arguments concerning the issue of severability in Florida v. HHS, a matter that appeared to attract a fair degree of Judge Vinson's attention at the recent hearing.
Again, the most interesting development from the December 16 oral argument in Florida v. Sibelius may have been Judge Vinson’s remarks concerning the issue of severability. Judge Vinson perceived the severance of the individual mandate as similar to the removal of a wheel from a clock—it will prevent the whole from functioning. Because of this and the numerous provisions of the ACA that have already gone into effect, Judge Vinson seamed reticent on this issue, regardless of how clearly he appeared to indicate his views on the constitutionality of the individual mandate. This issue is likely to arise in several of these lawsuits, so it is useful to expand on the parties’ arguments regarding the severability of §1501(b).
Again, the most interesting development from the December 16 oral argument in Florida v. Sibelius may have been Judge Vinson’s remarks concerning the issue of severability. Judge Vinson perceived the severance of the individual mandate as similar to the removal of a wheel from a clock—it will prevent the whole from functioning. Because of this and the numerous provisions of the ACA that have already gone into effect, Judge Vinson seamed reticent on this issue, regardless of how clearly he appeared to indicate his views on the constitutionality of the individual mandate. This issue is likely to arise in several of these lawsuits, so it is useful to expand on the parties’ arguments regarding the severability of §1501(b).
Wednesday, December 22, 2010
A new issue: Coons v. Geithner and "legislative entrenchment"
Coons v. Geithner, which currently is pending in the United States District Court for the District of Arizona, raises some constitutional issues not yet discussed much in the ongoing ACA debate. Specifically, the plantiffs allege (among many things) that the ACA's provisions governing the newly created Independent Payment Advisory Board (or IPAB) violate separation of powers principles (or unduly fetter Congress's Article I authority). Brandon Douglass, Graduate Fellow at Santa Clara University School of Law, has prepared the following primer on the case:
United States gets extension in Baldwin v. Sebelius
The federal government's brief as appellee in Baldwin v. Sebelius was originally due today at the Ninth Circuit. But in looking for that brief on PACER, I found this order:
The court vacates its December 1, 2010 order as issued in error. This is a preliminary injunction appeal. Appellees’ unopposed motion for a 35-day extension of time in which to file an answering brief is granted. The answering brief is now due January 26, 2011.
Thus, we will not have a brief from the United States in Baldwin for another month.
The court vacates its December 1, 2010 order as issued in error. This is a preliminary injunction appeal. Appellees’ unopposed motion for a 35-day extension of time in which to file an answering brief is granted. The answering brief is now due January 26, 2011.
Thus, we will not have a brief from the United States in Baldwin for another month.
Friday, December 17, 2010
NPR interview with Attorney General Cuccinelli
The lead figure in Virginia v. Sebelius spoke today with NPR's Michel Moore on his program "Tell Me More." You can access the audio (or read the transcript) here.
The state AG press conference in Pensacola
The attorneys general of Florida and Texas just after the argument ended yesterday:
Mazzone op-ed
Jason Mazzone (Brooklyn Law School) has a well written op-ed in today's edition of the New York Times that is worth a read. In short, he defends Judge Hudson's decision on the grounds that (a) there must be some judicially enforceable limit to the breadth of the commerce power (Lopez and Morrison mean at least this, if nothing else); and (b) limiting Congress to regulating "activities" is just as plausible, judicially manageable, and grounded in legal tradition (as evidenced by the distinction's salience in criminal and tort law) as any other we might dream up.
A "giant expansion of the Commerce Clause"
From today's Washington Post, a quote that pretty much leaves nothing in doubt as to how Judge Vinson will rule on the minimum coverage provision:
"[I]t would be a great leap for the Supreme Court to say that a decision to buy or not to buy is an activity. That would be a giant expansion of the commerce clause."
Turn out the lights, the party's over for the minimum coverage provision, at least in the Northern District of Florida. The administration will thus have to confront the prospect of having lost at the district court level, at least on this issue, in the two highest profile ACA lawsuits.
After Judge Vinson issues his ruling--the timing of which remains unclear--the next really significant ruling is likely to come from the Sixth Circuit in Thomas More Law Center v. Obama. The court is apt to hear oral argument in that case some time this spring, meaning its decision may come in the summer or fall.
"[I]t would be a great leap for the Supreme Court to say that a decision to buy or not to buy is an activity. That would be a giant expansion of the commerce clause."
Turn out the lights, the party's over for the minimum coverage provision, at least in the Northern District of Florida. The administration will thus have to confront the prospect of having lost at the district court level, at least on this issue, in the two highest profile ACA lawsuits.
After Judge Vinson issues his ruling--the timing of which remains unclear--the next really significant ruling is likely to come from the Sixth Circuit in Thomas More Law Center v. Obama. The court is apt to hear oral argument in that case some time this spring, meaning its decision may come in the summer or fall.
Thursday, December 16, 2010
Roundup of coverage of today's hearing
The general consensus appears to be that Judge Vinson (N.D. Fla.) will rule that the individual mandate is unconstitutional, but will rule against the plaintiffs on their Medicaid claim. According to The Wall Street Journal, Judge Vinson “signaled he saw the requirement as unprecedented and a potential imposition on Americans' individual liberties.” Judge Vinson stated: "It would be a giant leap for the Supreme Court to say that a decision to buy or not to buy is tantamount to activity."
According to Politico, Judge Vinson asked whether, assuming the federal government does in fact possess the power to require its citizens to purchase health insurance, it would, in turn possess the power to "mandate [that] everybody has to buy a certain amount of broccoli?” The Justice Department argued that unlike other products, such as cars or broccoli, “Health insurance is a product that is a financing mechanism." Justice argued that the minimum coverage provision “is Congress’s effort to [encourage people] to pay for health care needs today through insurance and not out-of-pocket.” Justice argued that because it is almost inevitable that at some point, everyone will access the health care system, the government should be able to regulate that decision, as a means of avoiding the costs being “externalized.” Judge Vinson seemed to indicate that he was not persuaded by this argument. The Wall Street Journal reports that Vinson provided an anecdote from his personal life: that as an uninsured law student, he paid the for the hospital bills related to his son’s birth out-of-pocket.
What is perhaps most interesting is how Judge Vinson addressed the severability issue. While he clearly indicated skepticism about the individual mandate’s constitutionality, he seemed equally aware of what severing it from the statute would do to the overall legislative scheme. According to The Wall Street Journal, “Judge Vinson likened the law to a clock when taking one wheel away would prevent the whole from functioning.” Obviously, removing the individual mandate would have major implications for the economic viability of some of the ACA’s major components, such as the requirement that insurers provide coverage for those with pre-existing conditions. But, as Judge Vinson indicated, this difficulty is compounded by the parts of the law that have already gone into effect, further complicating the severability question. Thus, the Judge asked, "How can you possibly undo some of these things?"
In regard to the plaintiffs’ Medicaid claim, Judge Vinson said: "It's possible for any state to withdraw from the Medicaid program." This argument was bolstered because, as the Journal reports, two of the plaintiff states have in recent months threatened to leave Medicaid.
In regard to the plaintiffs’ Medicaid claim, Judge Vinson said: "It's possible for any state to withdraw from the Medicaid program." This argument was bolstered because, as the Journal reports, two of the plaintiff states have in recent months threatened to leave Medicaid.
Early reports from Florida
Reporters are just now publishing their initial stories online concerning today's hearing in Pensacola. From a first quick skim, it appears that Judge Vinson was skeptical of the government's defense of the minimum coverage provision (and that its rationale could be confined to health insurance), but equally skeptical of the states' contention that their participation in Medicaid, for constitutional purposes, was effectively mandatory. The hearing lasted more than three hours.
We will post a roundup of the media coverage of the hearing later today.
We will post a roundup of the media coverage of the hearing later today.
Wednesday, December 15, 2010
And the focus shifts to Pensacola . . .
The most intense week of news coverage for ACA-related litigation will only become more heavily so tomorrow, as Judge Roger Vinson (N.D. Fla.) will hold a hearing on the parties' respective motions for summary judgment in Florida v. HHS. As with Judge Hudson's decision Monday in Virginia v. Sebelius, what Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo.
But there is clearly a political dimension to these district court rulings that is quite important. Namely, the more federal judges who invalidate the ACA (or a substantial portion thereof), the more traction and legitimacy those arguments gain. This not only affects current political debates about modifications to the ACA, but it also alters the context in which the Supreme Court will ultimately decide the constitutional questions. In short, the atmospherics--though only atmospherics--are important.
The action in Florida warrants particularly careful attention, if only because I think it is probably the case most likely to be taken up by the Supreme Court. Why? Let me offer four reasons:
* The plaintiffs include 20 states--16 represented by attorneys general, 4 by governors--and thus has an institutional heft or prestige that the other cases do not. In the end, this is a case about federalism. So it makes sense to have the interests of the states (and as many as possible) in the case.
* There are also three individual plaintiffs in the case. And their claims of Article III standing to challenge the minimum coverage provision are arguably stronger than a state's (and thus Virginia's in Virginia v. Sebelius). This is the only case where there are both individual plaintiffs and state plaintiffs.
* It includes both colorable constitutional issues presented by the ACA: (1) whether the minimum coverage provision exceeds Congress's enumerated powers, and (2) whether the ACA's Medicaid amendments are effectively coercive, and thus effectively "commandeer" the states. Virginia v. Sebelius only presents the first question. Both are interesting questions, worthy of Supreme Court review in their own rights.
* Moreover, that two questions are presented in this case might ultimately offer the Supreme Court some degree of political cover. For reasons I have explained at length previously, I think it is quite unlikely that the Court will invalidate the ACA's Medicaid provisions. Thus, this case would give the Court the chance to uphold one important aspect of the ACA (the Medicaid provisions) while invalidating another (the individual mandate). And this might offer the justices a means to make their ultimate decision appear less ideological--or so they might think.
In many respects, the most interesting news from tomorrow will be what, if anything, Judge Vinson says about the severability of 1501(b) or the appropriate remedy (if he finds part of the ACA unconstitutional). The parties have said very little about these issues in the papers, and Judge Vinson's October ruling gives no indication of how he might be thinking on these issues.
We will know much more by this time tomorrow.
But there is clearly a political dimension to these district court rulings that is quite important. Namely, the more federal judges who invalidate the ACA (or a substantial portion thereof), the more traction and legitimacy those arguments gain. This not only affects current political debates about modifications to the ACA, but it also alters the context in which the Supreme Court will ultimately decide the constitutional questions. In short, the atmospherics--though only atmospherics--are important.
The action in Florida warrants particularly careful attention, if only because I think it is probably the case most likely to be taken up by the Supreme Court. Why? Let me offer four reasons:
* The plaintiffs include 20 states--16 represented by attorneys general, 4 by governors--and thus has an institutional heft or prestige that the other cases do not. In the end, this is a case about federalism. So it makes sense to have the interests of the states (and as many as possible) in the case.
* There are also three individual plaintiffs in the case. And their claims of Article III standing to challenge the minimum coverage provision are arguably stronger than a state's (and thus Virginia's in Virginia v. Sebelius). This is the only case where there are both individual plaintiffs and state plaintiffs.
* It includes both colorable constitutional issues presented by the ACA: (1) whether the minimum coverage provision exceeds Congress's enumerated powers, and (2) whether the ACA's Medicaid amendments are effectively coercive, and thus effectively "commandeer" the states. Virginia v. Sebelius only presents the first question. Both are interesting questions, worthy of Supreme Court review in their own rights.
* Moreover, that two questions are presented in this case might ultimately offer the Supreme Court some degree of political cover. For reasons I have explained at length previously, I think it is quite unlikely that the Court will invalidate the ACA's Medicaid provisions. Thus, this case would give the Court the chance to uphold one important aspect of the ACA (the Medicaid provisions) while invalidating another (the individual mandate). And this might offer the justices a means to make their ultimate decision appear less ideological--or so they might think.
In many respects, the most interesting news from tomorrow will be what, if anything, Judge Vinson says about the severability of 1501(b) or the appropriate remedy (if he finds part of the ACA unconstitutional). The parties have said very little about these issues in the papers, and Judge Vinson's October ruling gives no indication of how he might be thinking on these issues.
We will know much more by this time tomorrow.
Appellants' brief filed in Thomas More Law Center v. Obama
The Thomas More Law Center and its accompanying appellants have just filed their opening brief in the Sixth Circuit in Thomas More Law Center v. Obama. You can access their brief here.
This is the second ACA-litigation-related brief to be filed in the United States Courts of Appeals. The appellants in Baldwin v. Sebelius filed their opening brief in the Ninth Circuit November 24. The district court in Baldwin, though, dismissed the plaintiffs' case on standing grounds, so this is the first appellate brief in a case in which the lower court actually reached the merits.
Again, the District Court for the Eastern District of Michigan (Judge Steeh) held that the ACA's minimum coverage provision constitutes a valid exercise of Congress's commerce power, and thus entered summary judgment for the United States. The United States's brief (the appellee) is due January 14.
This is the second ACA-litigation-related brief to be filed in the United States Courts of Appeals. The appellants in Baldwin v. Sebelius filed their opening brief in the Ninth Circuit November 24. The district court in Baldwin, though, dismissed the plaintiffs' case on standing grounds, so this is the first appellate brief in a case in which the lower court actually reached the merits.
Again, the District Court for the Eastern District of Michigan (Judge Steeh) held that the ACA's minimum coverage provision constitutes a valid exercise of Congress's commerce power, and thus entered summary judgment for the United States. The United States's brief (the appellee) is due January 14.
Tuesday, December 14, 2010
Holder and Sebelius op-ed
Attorney General Eric Holder and Secretary of Health and Human Services Kathleen Sebelius have published an op-ed in today's Washington Post in response to yesterday's decision. You can access the op-ed here.
It is generally what you would expect: a policy-based argument as to why the individual mandate is critical to the ACA's broader regulation of the health insurance market, with an anecdote thrown in for good measure. What is a bit interesting, though, is the following passage:
"If we want to prevent insurers from denying coverage to people with preexisting conditions, it's essential that everyone have coverage. Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market. The same is true for health insurance. Without an individual responsibility provision, controlling costs and ending discrimination against people with preexisting conditions doesn't work."
As discussed yesterday, perhaps the biggest single legal challenge for the administration will be to convince judges that the health insurance market is unlike any other market, and that Congress's use of the commerce power to enact 1501(b) will not justify the compulsion of Americans to purchase any other good or service. Perhaps unwittingly, though, the Attorney General and Secretary Sebelius here seem to be arguing, through this analogy, that the the logic of the government's commerce power arguments would indeed extend to other products--or at least to other insurance products.
It's a minor point, but it highlights some of the tensions between the administration's political and legal positions.
It is generally what you would expect: a policy-based argument as to why the individual mandate is critical to the ACA's broader regulation of the health insurance market, with an anecdote thrown in for good measure. What is a bit interesting, though, is the following passage:
"If we want to prevent insurers from denying coverage to people with preexisting conditions, it's essential that everyone have coverage. Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market. The same is true for health insurance. Without an individual responsibility provision, controlling costs and ending discrimination against people with preexisting conditions doesn't work."
As discussed yesterday, perhaps the biggest single legal challenge for the administration will be to convince judges that the health insurance market is unlike any other market, and that Congress's use of the commerce power to enact 1501(b) will not justify the compulsion of Americans to purchase any other good or service. Perhaps unwittingly, though, the Attorney General and Secretary Sebelius here seem to be arguing, through this analogy, that the the logic of the government's commerce power arguments would indeed extend to other products--or at least to other insurance products.
It's a minor point, but it highlights some of the tensions between the administration's political and legal positions.
Some commentary
A (relatively) short list of thoughtful commentary on yesterday's decision from the legal academy, in alphabetical order.
* Jonathan Adler (Case Western): here, here, and here.
* Jack Balkin (Yale): here.
* Randy Barnett (Georgetown): here.
* Michael Dorf (Cornell): here.
* Abbe Gluck (Columbia): here.
* Mark Hall (Wake Forest): here.
* Timothy Jost (Washington & Lee): here and here.
* Orin Kerr (George Washington): here and here.
* Andrew Koppelman (Northwestern): here and here.
* Kurt Lash (Illinois): here.
* Jason Mazzone (Brooklyn): here.
* David Orentlicher (Indiana): here.
* Frank Pasquale (Seton Hall): here.
* Ilya Somin (George Mason): here.
* Mark Tushnet (Harvard): here.
If there is something good or important that I have omitted, (a) I apologize, and (b) please let me know.
* Jonathan Adler (Case Western): here, here, and here.
* Jack Balkin (Yale): here.
* Randy Barnett (Georgetown): here.
* Michael Dorf (Cornell): here.
* Abbe Gluck (Columbia): here.
* Mark Hall (Wake Forest): here.
* Timothy Jost (Washington & Lee): here and here.
* Orin Kerr (George Washington): here and here.
* Andrew Koppelman (Northwestern): here and here.
* Kurt Lash (Illinois): here.
* Jason Mazzone (Brooklyn): here.
* David Orentlicher (Indiana): here.
* Frank Pasquale (Seton Hall): here.
* Ilya Somin (George Mason): here.
* Mark Tushnet (Harvard): here.
If there is something good or important that I have omitted, (a) I apologize, and (b) please let me know.
Monday, December 13, 2010
Room for Debate on N.Y.Times
There is no shortage of interesting commentary that has already been written on Judge Hudson's decision. I will try to aggregate the best of it over the course of the next 24 hours. For now, I recommend this discussion, hosted by the New York Times as part of its "Room for Debate" feature, which involves several people involved in the case (as authors of amicus briefs), including Professors Randy Barnett (Georgetown), Jack Balkin (Yale), and Ilya Somin (George Mason).
More action this week
Certainly Judge Hudson's decision today is the most important ACA litigation event of the week. But there are at least two other items to keep our eyes on:
* Wednesday, the appellants brief is due at the Sixth Circuit in Thomas More Law Center v. Obama. In that case, you will remember, Judge Steeh (E.D. Michigan) upheld the minimum coverage provision as a valid exercise of Congress's commerce power, and the plaintiffs have appealed.
* Thursday, oral arguments will take place before Judge Roger Vinson (N.D. Fla.) in Florida v. HHS on the parties' respective motions for summary judgment. Following Judge Vinson's prior decision on the United States's motion to dismiss, two claims remain in play: (1) whether the minimum coverage provision exceeds Congress's enumerated powers, and (2) whether the ACA's amendments to Medicaid are coercive, and thus effectively "commandeer" the state governments into implementing a federal legislative program.
* Wednesday, the appellants brief is due at the Sixth Circuit in Thomas More Law Center v. Obama. In that case, you will remember, Judge Steeh (E.D. Michigan) upheld the minimum coverage provision as a valid exercise of Congress's commerce power, and the plaintiffs have appealed.
* Thursday, oral arguments will take place before Judge Roger Vinson (N.D. Fla.) in Florida v. HHS on the parties' respective motions for summary judgment. Following Judge Vinson's prior decision on the United States's motion to dismiss, two claims remain in play: (1) whether the minimum coverage provision exceeds Congress's enumerated powers, and (2) whether the ACA's amendments to Medicaid are coercive, and thus effectively "commandeer" the state governments into implementing a federal legislative program.
Searching for a "logical limitation"
In his decision today, Judge Hudson took a number of controversial--defensible, for sure, but controversial--steps in concluding that the minimum coverage requirement exceeds Congress's enumerated powers. Among other things, he concluded that (1) the conduct regulated by ACA 1501(b) constitutes "inactivity," (2) Congress categorically lacks the authority to regulate inactivity, even when doing so is integral to the success of a broader scheme regulating interstate commerce, (3) the Necessary and Proper Clause does not augment Congress's commerce power, at least in this respect, and (4) whether federal legislation constitutes a "tax" or a regulation turns on Congress's intent (as expressed in various objective markers).
Lying beneath these specific doctrinal points, though, is a more basic, foundational one: that the federal government's arguments in support of the minimum coverage requirement "lack[] logical limitation." In other words, the federal government failed to convince Judge Hudson that there was any limiting principle in its interpretation of Congress's enumerated powers.
This is a serious problem for the United States--probably the single biggest problem it faces if it hopes to fare better in the courts of appeals as this litigation proceeds. As Virginia, the states in the Florida lawsuit, and every other plaintiff in the 20-odd other lawsuits challenging the ACA have argued, the government's understanding of the commerce power could effectively permit Congress to require Americans to purchase anything. The auto industry is in financial trouble? Require all Americans to purchase cars. The housing bubble is collapsing? Require all Americans to spend a certain amount per month for minimally adequate shelter. And so on. These sorts of provisions could easily be billed as "essential provisions" that are "integral to a broader regulatory scheme," which scheme plainly regulates interstate commerce (such as the automobile industry or the housing market).
Viscerally, most federal judges (not to mention, most lawyers and most Americans) believe that this cannot be right. Congress cannot have the authority, as a general rule, to mandate individuals to purchase goods or services from private vendors as a means of regulating the larger market in that good or service. This is simply not an acceptable understanding of the Commerce Clause, at least if the government is interested in five votes at the Supreme Court.
Thus, the key for the federal government, it seems to me, is to convince other judges (as it could not Judge Hudson) that the market for health insurance is unique--that the problems of adverse selection, and the fact that everyone will consume health care at some point, make the market for health insurance fundamentally different from any other context in which Congress might attempt to force individuals to purchase a good or service. This is the critical limiting principle that negates the states' claims of a slippery slope to unending federal purchasing mandates.
Can the federal government succeed in this respect? Who knows? But I think it is the essential pivot on which any United States victory in this litigation must turn.
Lying beneath these specific doctrinal points, though, is a more basic, foundational one: that the federal government's arguments in support of the minimum coverage requirement "lack[] logical limitation." In other words, the federal government failed to convince Judge Hudson that there was any limiting principle in its interpretation of Congress's enumerated powers.
This is a serious problem for the United States--probably the single biggest problem it faces if it hopes to fare better in the courts of appeals as this litigation proceeds. As Virginia, the states in the Florida lawsuit, and every other plaintiff in the 20-odd other lawsuits challenging the ACA have argued, the government's understanding of the commerce power could effectively permit Congress to require Americans to purchase anything. The auto industry is in financial trouble? Require all Americans to purchase cars. The housing bubble is collapsing? Require all Americans to spend a certain amount per month for minimally adequate shelter. And so on. These sorts of provisions could easily be billed as "essential provisions" that are "integral to a broader regulatory scheme," which scheme plainly regulates interstate commerce (such as the automobile industry or the housing market).
Viscerally, most federal judges (not to mention, most lawyers and most Americans) believe that this cannot be right. Congress cannot have the authority, as a general rule, to mandate individuals to purchase goods or services from private vendors as a means of regulating the larger market in that good or service. This is simply not an acceptable understanding of the Commerce Clause, at least if the government is interested in five votes at the Supreme Court.
Thus, the key for the federal government, it seems to me, is to convince other judges (as it could not Judge Hudson) that the market for health insurance is unique--that the problems of adverse selection, and the fact that everyone will consume health care at some point, make the market for health insurance fundamentally different from any other context in which Congress might attempt to force individuals to purchase a good or service. This is the critical limiting principle that negates the states' claims of a slippery slope to unending federal purchasing mandates.
Can the federal government succeed in this respect? Who knows? But I think it is the essential pivot on which any United States victory in this litigation must turn.
Article I and the regulation of inactivity
Again, a critical step--perhaps the critical step--in Judge Hudson's decision today was to hold that Congress cannot use its commerce power to regulate inactivity. Even in the cases that have pushed the commerce power to its outermost edges, Judge Hudson reasoned, "the activity under review was the product of a self-directed affirmative move" that "voluntarily placed the subject within the stream of commerce." In other words, no court has ever blessed this sort of use of the commerce power, and thus it is unconstitutional.
This is a completely defensible, if controversial, reading of the Supreme Court's precedent. The biggest difficulty for this argument, however--and one with which Judge Hudson did not grapple--is why Congress can use other Article I powers to compel individuals to do something. For example, it has long been settled that Congress can use its powers under Article I, section 8, clauses 12 and 13 (to "raise and support Armies" and "provide and maintain a Navy") to force individuals to register for the military draft. It can use its Article I, section 8, clause 9 power (to "constitute Tribunals inferior to the supreme Court") to compel individuals to serve on juries. It can use a variety of its Article I powers to compel individuals to transfer their title to property pursuant to a condemnation (though, of course, the government must pay "just compensation").
In other words, there are a variety of contexts in which--uncontroversially, at least to most observers--Congress can use its Article I regulatory powers to subject individuals to regulation, even though there was no "self-initiated change in position [that] voluntarily placed the subject within" the government's regulatory ambit.
That is not to say that these circumstances cannot be distinguished. One might argue, for instance, that each of these other contexts involves an obligation that a citizen owes to her government, the sovereign, and that forcing a citizen to deal with the government is qualitatively different from forcing her into a commercial transaction with a private third party. Or it could be that these mandates are somehow more "fundamental" to the exercise of these Article I powers than 1501(b) is to Congress's power to regulate interstate commerce. Or it could be that, for whatever reason, the capacity to compel extends to some Article I powers but not the Commerce Clause (though I'm unclear as to why that might be).
In any event, this seems an important point in the doctrinal logic of Judge Hudson's opinion. And it is one that he made no effort to defend. (That is meant not as a criticism, for one cannot possibly defend everything in a judicial opinion. Just an observation.)
This is a completely defensible, if controversial, reading of the Supreme Court's precedent. The biggest difficulty for this argument, however--and one with which Judge Hudson did not grapple--is why Congress can use other Article I powers to compel individuals to do something. For example, it has long been settled that Congress can use its powers under Article I, section 8, clauses 12 and 13 (to "raise and support Armies" and "provide and maintain a Navy") to force individuals to register for the military draft. It can use its Article I, section 8, clause 9 power (to "constitute Tribunals inferior to the supreme Court") to compel individuals to serve on juries. It can use a variety of its Article I powers to compel individuals to transfer their title to property pursuant to a condemnation (though, of course, the government must pay "just compensation").
In other words, there are a variety of contexts in which--uncontroversially, at least to most observers--Congress can use its Article I regulatory powers to subject individuals to regulation, even though there was no "self-initiated change in position [that] voluntarily placed the subject within" the government's regulatory ambit.
That is not to say that these circumstances cannot be distinguished. One might argue, for instance, that each of these other contexts involves an obligation that a citizen owes to her government, the sovereign, and that forcing a citizen to deal with the government is qualitatively different from forcing her into a commercial transaction with a private third party. Or it could be that these mandates are somehow more "fundamental" to the exercise of these Article I powers than 1501(b) is to Congress's power to regulate interstate commerce. Or it could be that, for whatever reason, the capacity to compel extends to some Article I powers but not the Commerce Clause (though I'm unclear as to why that might be).
In any event, this seems an important point in the doctrinal logic of Judge Hudson's opinion. And it is one that he made no effort to defend. (That is meant not as a criticism, for one cannot possibly defend everything in a judicial opinion. Just an observation.)
What next?
Where do we go from here with Virginia v. Sebelius. That is not altogether clear at this point. Here are the complications:
* The Judge Moon of the Western District of Virginia ruled last Tuesday in Liberty University v. Geithner that the minimum coverage requirement was constitutional, and the plaintiffs have already filed their notice of appeal. Thus, there are now two cases on their way to the Fourth Circuit. The court could consolidate them, or perhaps schedule them simultaneously. There is an important difference between the cases, though, that warrants notice: the plaintiffs in Liberty University include at least one private individual. And this means that they may have a better ground for Article III standing to challenge the individual mandate. This means there may be reasons to keep the cases separate, even if the merits question is identical. Regardless, the parties and the Fourth Circuit will have to work this out.
* Virginia Attorney General Kenneth Cuccinelli has made noises publicly about taking this case directly to the Supreme Court, bypassing the Fourth Circuit. He has indicated that his office has "had discussions" with DOJ attorneys about the matter. But (1) it is unclear what these "discussions" have actually entailed, or what enthusiasm the administration has expressed for such an idea; (2) it is unclear why it would be in the administration's interest to get to the Supreme Court sooner rather than later--it would seem that, the longer the country lives with health care reform, and the more other parts of the ACA are implemented, perhaps the better the case for its constitutionality; and (3) it would now seem to be up to the United States, and not Virginia, to seek such an expedited review from the Supreme Court; and (4) it is unclear why the justices would actually be interested in taking the procedurally extraordinary (but not unprecedented) step of hearing the appeal directly from the district court, as it would only add fuel to the accusations (merited or otherwise) of "conservative judicial activism."
So we need to wait and see for a little while as to what exactly is next.
* The Judge Moon of the Western District of Virginia ruled last Tuesday in Liberty University v. Geithner that the minimum coverage requirement was constitutional, and the plaintiffs have already filed their notice of appeal. Thus, there are now two cases on their way to the Fourth Circuit. The court could consolidate them, or perhaps schedule them simultaneously. There is an important difference between the cases, though, that warrants notice: the plaintiffs in Liberty University include at least one private individual. And this means that they may have a better ground for Article III standing to challenge the individual mandate. This means there may be reasons to keep the cases separate, even if the merits question is identical. Regardless, the parties and the Fourth Circuit will have to work this out.
* Virginia Attorney General Kenneth Cuccinelli has made noises publicly about taking this case directly to the Supreme Court, bypassing the Fourth Circuit. He has indicated that his office has "had discussions" with DOJ attorneys about the matter. But (1) it is unclear what these "discussions" have actually entailed, or what enthusiasm the administration has expressed for such an idea; (2) it is unclear why it would be in the administration's interest to get to the Supreme Court sooner rather than later--it would seem that, the longer the country lives with health care reform, and the more other parts of the ACA are implemented, perhaps the better the case for its constitutionality; and (3) it would now seem to be up to the United States, and not Virginia, to seek such an expedited review from the Supreme Court; and (4) it is unclear why the justices would actually be interested in taking the procedurally extraordinary (but not unprecedented) step of hearing the appeal directly from the district court, as it would only add fuel to the accusations (merited or otherwise) of "conservative judicial activism."
So we need to wait and see for a little while as to what exactly is next.
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