Saturday, November 19, 2011

Judge Brett Kavanaugh’s Strange Political Prediction—And Other Recent ACA-Litigation Events

Well, as you all probably know by now, there have been two major developments in the courts within the last two weeks on the litigation challenging the constitutionality of the Patient Protection and Affordable Care Act (the ACA, a.k.a., “Obamacare). On November 8, a three-judge panel of the federal appeals court for Washington, D.C. issued its ruling in a case challenging the constitutionality of the so-called individual mandate requiring everyone who can afford healthcare insurance to purchase it, upon penalty of payment of a regulatory fee. That, of course, is the issue that has gotten almost all of the news media attention, thanks to loud Tea Party/Republican-pol/rightwing-talk-show-personalities cries that the mandate unconstitutionally violates individual liberty and therefore is beyond Congress’s authority under the Constitution’s Commerce Clause.

The Commerce Clause gives Congress the power to regulate interstate commerce and, under Supreme Court precedent, pretty much anything that affects interstate commerce. It is the “enumerated power” under which the ACA was enacted. As opposed to, say, the taxing “enumerated” power.

In several earlier AB posts, including one about the oral argument in late September in the appeal that was decided by last week’s ruling, I said that the right-wing’s conflation of the limits of Congress’s authority under the Commerce Clause and the separate issue of the Constitution’s various limitations on government power to infringe upon individual liberty, including in the Fifth Amendment’s Due Process Clause limiting the federal government’s powers to infringe upon individuals’ rights, is a sophism, as a matter of law and as a matter of logic. I also said that the Due Process argument is fatuous; the federal government clearly has the authority under the taxing power to compel the purchase of medical insurance or retirement savings, and does so for Medicare and Social Security, and a mandate under the Commerce power infringes no more on individual liberty than a mandate under the taxing power.

I made these points originally in an AB post in late June, a few days before Sixth Circuit Court of Appeals Judge Jeffrey Sutton, a highly-regarded conservative Reagan appointee prominent Federalist Society member who early in his career served for a year as a law clerk to Justice Scalia, eloquently deconstructed that conflation in his 2-1 majority opinion upholding the constitutionality of individual mandate. I reiterated the points in an AB post about the Sutton opinion (which I sillily titled “Judge Sutton Channels … Me??”). And I summarized them in a post in early October in which I discussed the oral argument in the appeal that was decided on November 8.

The Sixth Circuit opinion was the first appellate ruling on an ACA case. The dissenter in that opinion is not an appellate judge but instead a trial-level judge sitting on that appellate panel “by designation ” of that court’s chief judge via a statute that allows this, and whose dissenting opinion was breathtakingly lightweight.

In August, an Eleventh Circuit panel consisting of a Clinton appointee to the Court of Appeals who had been appointed as a trial-level judge by Reagan, another Clinton appointee, and a George H. W. Bush appointee, issued a 2-1 opinion ruling the individual-mandate provision unconstitutional but upholding the remainder of the ACA, saying that the remainder was “severable” from the individual-mandate provision—that is, that the remainder of the Act could stand on its own and that therefore the loss of the mandate provision did not dissolve the remainder of the statute. The opinion was written by the Reagan appointee, Joel Dubina and joined by Clinton appointee Frank Hull. Neither judge is considered a star legal analyst, and the opinion didn’t disappoint. It was a rote adoption of the the-individual-mandate-unconstitutionally-infringes-on-liberty-because-it-penalizes-inaction-and-therefore-Congress-exceded-its-Commerce-Clause-authority. The opinion doesn’t explain how a supposed unconstitutional infringement of liberty amounts to a per se exceeding of Congress’s Commerce power, the opinion doesn’t explain. Alchemy? The dissent by Judge Stanley Marcus is scathing. (More about this case below.)

The panel in the Washington, D.C. case, the one decided on November 8, like the panel in the Sixth Circuit case, was comprised of two conservative Republican appointees and a Democratic appointee. Both Republican appointees, Lawrence Silberman and Brett Kavanaugh, the latter a former law clerk for Judge Kennedy, are high-profile stalwart conservatives and both are intellectual leaders of the “movement” right, albeit from slightly different conservative-legal-movement eras. Silberman is a Reagan appointee, Kavanaugh a George W. Bush appointee. In any event, they are not just rightwing but also considered intelligent, if not necessarily by me.

In my post last month about the oral argument in that case, I wrote:
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 attendants 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.)
I followed those paragraphs with this one:
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.
Um, oops. Actually, it was Silberman, not Kavanaugh, who suggested that if the individual mandate in the ACA is constitutional, then a mandate requiring the purchase of a GM car might be, too. It was, however, Kavanaugh who predicted, mouth watering, that if the ACA’s mandate is upheld, it might usher in a mass privatization of the social safety net.

When the panel decided the case, it was Silberman who wrote the opinion—for himself and the Democratic appointee, liberal Clinton appointee Harry Edwards, upholding the individual mandate and echoing the basics of Judge Sutton’s opinion: that the Commerce Clause gives Congress the authority to regulate that which affects an interstate market, as the healthcare market clearly is; that the decision to not purchase healthcare insurance is not inactivity but instead clearly market activity because (unlike the proverbial decisions whether to purchase broccoli, or a GM vehicle) virtually everyone will need healthcare at some point, and will receive it whether or not the person is insured or can afford to pay the medical bills out-of-pocket; that the infringement-of-individual-liberty objection is not a Commerce Clause issue but instead a Due Process issue; and that the individual-mandate provision does not unconstitutionally infringe upon individual liberty.

Silberman’s opinion adopts Sutton’s reasoning in all respects. Most interesting, I think—partly, I guess, because by now I feel like I have a proprietary interest in it—is his conclusion that:
Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause.
Kavanaugh dissented. But not on “liberty” grounds. And not even on Commerce Clause grounds. Instead, he said a court ruling now is premature, for two reasons., one (he said) compelled by statute, the other (he said) in deference to “the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions.”

“Unnecessarily” being the interesting part of this.

The statutory reason is his interpretation of a federal court-jurisdiction statute called the Anti-Injunction Act and of the legal nature of the mandate provision. The Anti-Injunction Act removes the “jurisdiction,” i.e., legal authority, of the courts to even consider the challenge to the individual-mandate provision and its penalty for failure to purchase insurance until after the effective date of that provision in 2014 and the penalty is assessed against someone who then sues for reimbursement, contesting the provision’s constitutionality. The issue depends on whether the penalty is a tax, since the Anti-Injunction Act applies only to taxes. In August, a panel of the Fourth Circuit Court of Appeals ruled, 2-1, that the mandate is a tax and that the Act therefore removed the courts’ jurisdiction to consider the constitutionality of the mandate provision until 2015, when the first penalties would be assessed by the I.R.S. Kavanaugh bought the argument; Silberman and Edwards didn’t.

The “unnecessarily” reason has subparts, but the main ones are that Congress may repeal the ACA, or parts of it, before the individual-mandate provision becomes effective, and, more to the point (or at least more to my point), that Congress may instead simply change the wording of the mandate provision slightly so that the penalty is clearly a tax. Which, he says, clearly would be constitutional.

He doesn’t say that it would be clearly within Congress’s taxing power. He says, flatly, that it would be clearly constitutional. He says, in other words, that the infringement on liberty does not itself violate the Constitution—whether the mandate is an exercise of Congress’s power to regulate interstate commerce or instead an exercise of Congress’s power to tax.

That Kavanaugh has an ideological ulterior motive which advertised at oral argument and reiterates with more elaboration in his dissenting opinion— his expectation that if the ACA’s mandate is upheld, it could herald an era of mass privatization of the social safety net, happily marrying tea party types and rightwing interests in having government create a market serving private business interests—does not matter. Nor does it matter that Kavanaugh is delusional—unless, of course, it really is likely that there is, say, a private-food-assistance lobby similar in number to the insurance-industry lobby that, like the insurance-industry lobby did in fighting single-payer healthcare insurance proposals (and even the so-called public option in a version of Obamacare) , will emerge like locusts to have Congress enact a law mandating that everyone who can afford to do so must purchase food stamps each year, redeemable when and if necessary. Or that the AARP will agitate for privatization of Social Security, maybe in order to prevent the government from funding massive otherwise-unfunded wars and massive tax cuts for the wealthy largely by tapping the ostensible Social Security trust fund.

No, what matters is that Kavanaugh said what he said, irrespective of his motive. Kavanaugh got it right. The individual-mandate provision does not violate the Constitution’s limitations on government infringement of individual liberty. And Sutton and Silberman, neither of whom appears to share Kavanaugh’s peculiar delusion and ulterior motive, but also neither of whom voted for Obama or any member of Congress who voted for his “care,” have enunciated so finely why this is so and why, also, the mandate provision is within Congress’s Commerce Clause authority, that a 5-4 Supreme Court ruling to the contrary would be a transparent act of ideology. It’s not, of course, that the majority doesn’t do this, regularly; they do. It’s that this time they would be eating not only Obama and Care, but also Kavanaugh, Sutton and Silberman.

The fat lady hasn’t sung yet on the constitutionality of the individual mandate, but I think it’s over nonetheless. When the Court decides that issue—and despite the out-of-right-field potential inherent in certain sort-of-breathtaking parts of the Court’s order last Monday agreeing to hear the Eleventh Circuit case—I think the Court will decide that issue, eventually, if not in that case.

For the specifics of that order, and a comprehensive discussion of the five parts to it and the possible implications of one of them, see Simon Lazarus and Dahlia Lithwick’s article in Slate, “The Medicaid Ambush: The Supreme Court's unexpected and astounding reasons for wanting to hear a challenge to Obamacare,” at http://www.slate.com/articles/news_and_politics/jurisprudence/2011/11/the_unexpected_and_astounding_arguments_the_supreme_court_will_hear_on_obamacare_.html.

If the Court rules the ACA unconstitutional because the majority thinks the ACA’s expansion-of-Medicaid provision violates the states’, um, constitutional right to the current federal statutory entitlement (Medicaid in its current form) in order to protect the popularity of the states’ legislators who would vote to forego Medicaid in order to avoid the requirements of Obamacare (see the Slate article), then of course the Court will never have to decide the constitutionality of the individual mandate. I don’t think it will buy the states’ hubristic claim; I think the Court simply wants to hear all challenges from all governments that are suing. This is a court with at least a few members who apparently think that any time a state or local government asks it to hear a case, it should hear the case. But it also is a court whose majority, in deciding cases, regularly privileges the states’ interests over the interests of the federal government and of individuals. Their ideology largely rejects the Fourteenth Amendment and the original Constitution’s Supremacy Clause. So, who knows?

As for what caused Silberman’s change of heart about whether the individual mandate unconstitutionally infringes upon the liberty of individuals to remain uninsured, I have two theories. One is that Kavanaugh read my AB post attributing to him Silberman’s oral argument comment equating the mandate with a theoretical mandate to purchase a GM car, and after explaining to Silberman the difference between the two and insisting that Silberman publicly clarify the distinction or make clear that he, not Kavanaugh, drew the analogy, lest a gasping-for-air David Koch be dumped by an ambulance attendant onto the street and run over by a Cadillac Escalade and that Kavanaugh be blamed, he persuaded Silberman to change his mind about the whole analogy. The other is that Silberman himself gave more thought to whether it would be such a bad thing after all for the government to mandate a GM car in every driveway. After all, that new Chevy Cruze is awfully cute and gets pretty good gas mileage.