Much Ado About Not Much

The big legal news today was about the first appellate-court oral argument, this afternoon, on the constitutionality of the Affordable Care Act. The argument—arguments, actually; two separate cases were argued separately—were to a three-judge panel of the Court of Appeals for the Fourth Circuit, the regional federal appeals court for several mid-Atlantic and southern states, including Virginia.

In one of the two cases argued today, Virginia’s Tea Party attorney general, Ken Cuccinelli, had sued on behalf of the state, challenging the constitutionality of the ACA in total and, jointly and severally, the individual-mandate provision providing for a civil fine for failure to obtain health insurance. (OK, the use of the phrase “jointly and severally” is an inside joke among lawyer types; joint and several liability is a personal-injury-law term that means that each defendant found guilty of participating in causing the injury is liable individually for the whole amount of the monetary award if the other defendants can’t pay their fair share.) The lower-court judge held that individual-mandate provision, but not the rest of the statute, unconstitutional, so the state appealed. In the other case argued today, Liberty University and a few individuals challenged the law as unconstitutional on several grounds, including that, according to the university, the law would allow for federal funding of abortions.

In the State of Virginia case, a threshold issue is whether the state has legal “standing” to challenge the constitutionality of the statute, ostensibly on behalf of its residents, since the statute doesn’t affect the rights of the state itself. In the Liberty U. case, the federal-funding-of-abortions grounds for constitutional challenge is a non-starter, but at least the U. has standing to sue, since it’s an employer and parts of the ACA do affect employers, and the individuals who are suing along with the U. have standing because they’re, well, individuals and therefore subject to the individual-mandate provision.

Anyway … all three panel members, selected randomly from among the members of that court, are Dem appointees, one a Clinton appointee, the other two Obama appointees. The reports about the arguments can be summed up as: the panel will find that Virginia has not standing to sue to challenge the constitutionality of the law, and that the entire law, including the individual-mandate provision, is constitutional as “necessary and proper” (a term in the Constitution) legislation under Congress’s power to regulate commerce, a power specified in the Constitution.

One of the Obama appointees, Andre Davis, said that under the Commerce clause, Congress has broad power to regulate national markets—something that the Court has held unremittingly since the 1930s—including the health insurance market. The other two judges, Clinton appointee Diana Gribbon Motz and Obama appointee James A. Wynn, Jr., pointed out that regulating commerce includes regulating the effects of people’s decisions, individually or collectively, on commerce—on markets—and so, for Commerce clause purposes, if not independently, then at least via the necessary-and-proper clause, there is no distinction between the power to regulate “activity” and the power to regulate “inactivity.” This undercuts the crux of the challengers’ claim, which is that there is a constitutionally significant distinction between regulation of “activity” and regulation of “inactivity.” The judges kept pressing the Liberty U. lawyer to delineate a line between activity and inactivity, and to state whether a decision not to do something amounts to an action.

Apparently, he failed the activity test, at least as far as this panel is concerned.

Within the next few weeks, there will be three other appellate arguments, in other regional appeals courts, on the constitutionality of the ACA. And all of these, and the opinions these panels will write, are sideshows.

Normally, the persuasive strength of an appellate opinion in a case that clearly will be decided ultimately by the Supreme Court could matter, by persuading a justice or two or, in a high-profile case, by persuading the public and therefore, indirectly, a justice of two. But these cases—this issue—has the feel of Bush v. Gore, at least in that each of the justices almost certainly already knows how he or she will vote. I’ve said here earlier, and I’ll repeat it, that I think the swing vote in this case is Scalia, not Kennedy, and that because Scalia has boxed himself in, in earlier, relatively recent opinions, on the basic commerce-clause/necessary-and-proper clause questions at issue in the ACA litigation, he will vote to uphold the statute as constitutional.

I’ve also said, though, that I’m probably wrong.

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Crossposted at Angry Bear.