Monday, October 3, 2011

The Plot Sickens – The Heart of the ACA Litigation Moves to the Supreme Court. Maybe.

Last week’s big political news concerning the PPACA (a.k.a. “Obamacare”) litigation was the administration’s decision to forego the option of asking the full membership of the Atlanta-based Eleventh Circuit Court of Appeals, the appellate for several southeastern states, to hear and reverse the mid-August opinion by two members of a three-judge panel of that court striking down the individual-mandate provision of the ACA as beyond the constitutionally permissible reach of the Commerce Clause, the “enumerated power” in the Constitution under which Congress enacted the statute.

This surprised some political pundits, but because anyone thought a majority of the members of that most conservative of regional federal appellate courts would disagree with the ruling—except possibly the part holding that the mandate provision was “severable” from the remainder of the Act and that therefore the Act remained intact except for the mandate provision. Instead, they thought that the Obama administration wanted (or, more accurate, should want) to delay a Supreme Court ruling on the constitutionality of the statute, especially the mandate provision, until after the election next fall. And if the full appellate court agreed to dissolve the panel’s opinion and hear the case—a long shot, in my opinion—this would do the trick.

At least, that is, if the Supreme Court denied or postponed consideration of the petition for Supreme Court review of a majority opinion of a three-judge panel of the Cincinnati-based Sixth Circuit Court of Appeals, the appeals court for Michigan, Ohio, Kentucky and Tennesee, in late June, written by conservative Bush appointee Jeffrey Sutton, upholding the constitutionality of the mandate provision. Sutton’s opinion meticulously and eloquently deconstructed the plaintiffs’ arguments—which are the same as those by the individual human plaintiffs in all the other cases challenging the constitutionality of the individual mandate. He famously explained: First, contrary to assertions, the real basis for the plaintiffs’ claim is not that Congress lacks the authority under the Commerce Clause to mandate that everyone who is financial able purchase healthcare insurance in order to help defray the inevitable costs of their own emergency medical care when need arises and care is sought, but rather that this mandate unconstitutionally infringes upon individual liberty to remain self-insured. And, second, the structure of the statutory mandate—that the individual obtain the insurance from a private carrier—no more infringes upon that individual liberty than would the imposition of a tax similar to the Medicare and Social Security tax laws, paid to the government for that purpose. If the claim is a constitutional right, a constitutional liberty interest, in remaining self-insured—and that is the claim—then the infringement on individual liberty comes not from the mandated purchase of the insurance from a private party but instead from the removal of the option to remain self-insured.

And any infringement on individual liberty doesn’t morph into an unconstitutional infringement on liberty simply because the enumerated power under which Congress enacted the statute was the power to regulate interstate commerce (the Commerce Clause) rather than the power to tax in order to provide for the general welfare (the Tax Clause). And constitutional authority conferred through the Commerce Clause doesn’t become un-conferred by the Commerce Clause just because the statute limits individual liberty. Conflating the two separate grounds, neither of which can stand on its own, doesn’t transform a constitutional statute into an unconstitutional one. No alchemy here.

Sutton’s analysis exposes the constitutional challenges to the individual mandate for what they are: a series of ideological clich├ęs masquerading as legal argument. As I wrote in AB shortly after the Sutton opinion was released, his analysis is so fine, so precise, that ultimately the Supreme Court’s opinion will echo it. So I was not among those who were surprised that the administration is pushing for a Supreme Court ruling on the constitutionality or the statute before the 2012 election. But all the judges thus far who have voted to invalidate the individual-mandate provision as unconstitutional are, in my opinion, intellectual lightweights, and so I’d wondered whether the Sutton analysis itself could be persuasively deconstructed by a judge or justice who is not.

The answer appears to be no. Last week, a panel of yet federal appellate court, this one the one for Washington, D.C., heard arguments in yet another case challenging the constitutionality of the mandate as beyond Congress’s Commerce-regulation authority because it infringes upon the liberty of individuals to remain self-insured, it requires the purchase of a “product” from a private party, and, well, um, the scope of the statute is really sweeping. I mean, what’s next, asked one of the two stalwart rightwing-intellectual-heavyweight members of the panel? Congress mandating the purchase of GM cars by the wealthy in order to prevent the collapse of that company during the next economic downturn, upon pain of payment of a penalty for failure to do so? (I hope so. Then, when David Koch has a heart attack in his Maserati and the ambulance attendance verify through the Secretary of State’s offices in his various home states that there is no GM car registered in his name, the attendants dump his gasping-for-breath body in the road, where he’s run over by a Cadillac SUV.)

A sigh of relief was in order—although I had to wait until I stopped smiling like a Cheshire cat. That judge, Brett Kavanaugh (a former law clerk to Justice Kennedy, circa 1993), reportedly commented earlier to the plaintiffs’ lawyer that maybe the courts shouldn’t interfere with what could be the beginning of the mass privatization of the social safety net. More likely, I think, it will prompt, finally, a single-payer healthcare-insurance system—Medicare for all—in order to cut out the spiraling costs of a private, multi-carrier, for-profit system whose premiums reflect, in part the investment losses of those private companies. But don’t tell Judge Kavanaugh until after that appeal is over.

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Much as the administration and its many litigation opponents—which include 26 states, which are challenging another part of the statute—want a quick Supreme Court adjudication of the constitutionality of the statute, there is some possibility that the Supreme Court will hold that it lacks “subject-matter jurisdiction”—i.e., legal authority—to consider the challenges at least to the mandate provision until sometime in 2015, when the mandate provision becomes effective and the IRS collects the penalty. This is pretty esoteric procedural stuff, and it was the subject of an earlier AB post of mine last spring in which I said I thought that outcome in the Supreme Court was unlikely. But in early September a 2-1 majority of the Richmond, VA-based Fourth Circuit Court of Appeals, the appellate court for the Carolinas, West Virginia and a couple of mid-Atlantic states, along with Virginia, last month ruled exactly that. The issue concerns a federal “jurisdictional” statute called the Anti-Injunction Act (the AIA), and the Supreme Court’s interpretation of that statute in two opinions issued on the same day, concerning the current statute’s predecessor, in 1922.

Sutton and his two colleagues rejected the argument. And the dissenter in the Fourth Circuit case, Andre Davis, dismantled his colleagues’ analysis as absurd. I agree with Davis. But as law prof. Brad Joondeph, who writes a blog devoted entirely to the ACA litigation, and who is featured prominently in AB posts of mine from last June, wrote recently, the language of the AIA, and the Supreme Court’s earlier opinions interpreting it, may not matter here.

What might? If a majority of justices, for various reasons, want to punt on the issue of the constitutionality of the ACA until after—comfortably after—next year’s elections. I don’t think they will. But I’m probably wrong.