In his May 8 article about Wednesday’s oral argument in the 11th Circuit in the ACA case in which Paul Clement is representing 26 states in challenging the constitutionality of the statute, New York Times reporter Kevin Sack wrote that those states are paying Clement $250,000 to handle the appeal in that court and eventually in the Supreme Court.
That’s a stunning amount, even though the amount each state will pay is relatively small. These are two appeals in a single case that involves, entirely, arguments of law. There is no trial transcript, nor trial-court orders on motions, nor volumes of business records—the things that usually raise appellate legal fees to astronomical heights. And the legal arguments are the standard ones being discussed ad nauseam in legal circles. Clement’s hourly fee on this will turn out to be something close to $1,000, I’d bet.
Maybe lines like, “It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual,” as he told the panel on Wednesday, makes this guy worth his price. But if so, it’s only because the judges will assume that since he’s Paul Clement rather than, say, another lawyer, that line makes sense.
Saturday, June 11, 2011
Ah! It’s not about regulating markets, after all! It’s about regulating the individual!
ATLANTA — In perhaps the weightiest of the dozens of challenges to the Obama health care law, a panel of appellate judges grappled Wednesday with the essential quandary of the case: if the federal government can require Americans to buy medical insurance, what constitutional limit would prevent it from mandating all manner of purchases and activities?
—Kevin Sack, New York Times, Jun. 8
In my last post, “Markets and the ACA: Why the Supreme Court Will Uphold the ACA,” I wrote:
[Santa Clara law prof. and ACA-litigation blogger Brad Joondeph is] right (see my post below), but only if, as he says earlier, the market for health insurance is defined so narrowly that health insurance is viewed as a commodity, a product, independent of the product’s purpose and effect. And then, the constitutional issue would not, I think, be whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to regulate the health insurance market, but instead whether this violates some other constitutional limitation. You know: the slippery-slope-to-government-compelled-consumption-of-broccoli argument.
Turns out I was onto something. From reports I’ve read about the oral argument on Wednesday, it looks to me like that appellate panel will decide the case not on the basis of the limits of the Commerce Clause but instead on a more general civil liberties ground. They may cloak it as a Commerce Clause issue—and certainly that is what Paul Clement, the attorney representing the 26 states wants the court to do—but, really, given the questioning and comments from the swing judge on that appellate panel, and therefore the basis on which that panel will decide the case, this would be an improper conflation of Commerce Clause issues and what is known as “substantive due process” issues. And I think, ultimately, it is the substantive due process question on which the Supreme Court will decide the case. This is so even though conservative legal types detest the very concept of substantive due process.
Substantive due process is a doctrine of constitutional law that holds that there are limits, inherent within the Constitution, to the extent to which the government can interfere with basic personal choices, irrespective of how much procedural due process that individual is accorded. It’s a concept completely independent of procedural due process—the right to due process of law before the courts can strip you of life, liberty or property.
Procedural due process is all about the limits of what courts can do. Substantive due process, by contrast, is almost always about the limits of what a legislature can do. The doctrine holds that there are some personal choices that are inviolate under the Constitution. It is the much-ridiculed-by-rightwingers legal principal on which Roe v. Wade was based. Roe v. Wade, for its part, was based on a 1965 Supreme Court case called Giswold v. Connecticut, which created the substantive-due-process right of individuals to make deeply personal decisions for themselves and struck down as an unconstitutional violation of that privacy right a state statute that prohibited the use of contraceptives. And it is the principal on which in an eloquent 2003 opinion, Lawrence v. Texas, by Justice Kennedy, the Court struck down Texas’s anti-sodomy criminal statute.
Rehnquist, Scalia and Thomas dissented in Lawrence on the ground that, in their view, there is no such substantive-due-process right—no privacy right concerning intimate personal decisions—in the Constitution. Scalia and Thomas might change their minds, though, but only about the intimate decision not to buy health insurance, especially because that right is just too similar to the intimate right not to eat broccoli.
The 11th Circuit panel members are Joel Dubina, a conservative Reagan appointee to the district (trial-court level) court and a G.H.W. Bush appointee to the appellate court, whose daughter is a freshman Alabama congresswoman who campaigned on a promise to try to repeal the ACA; Frank (female, despite her name) Hull, a moderate Clinton appointee; and Stanley Marcus, a moderate-to-conservative G.H.W. Bush appointee to the district court and Clinton appointee to the appellate court.
According to one report I read, Marcus early in the hearing said he viewed the central issue in the case—the constitutionality of the individual-mandate provision—as less a Commerce Clause issue than a civil liberties issue: Does the mandate violate the civil liberties of individuals by requiring them to obtain healthcare insurance? That’s a different question, and a broader one, I think, then whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to mandate the purchase of healthcare insurance by those who can afford to buy it. Congress may have that authority under the Commerce Clause, but the legislation still might be unconstitutional if it violates another provision of the Constitution, here presumably the substantive due process right to be compelled to buy something. Presumably, because no one, least of all Clement, used the term “substantive due process right”. But he sure the words “compel,” “liberty” and “individual.” Early and quite often:
“The Commerce Clause only gives Congress the power to regulate, not to compel.” …
“It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual.” …
“In 220 years, Congress never saw fit to use this power, to compel a person to engage in commerce.” …
“The whole reason we do this is to protect individual liberty.” …
When Hull said she believed the decision not to buy insurance involved some “economic activity” that impacts the healthcare market (and that therefore, under the Supreme Court’s interpretation of Commerce Clause powers, Congress has the authority under the Commerce Clause, coupled with the Necessary and Proper Clause, to regulate), Clement reportedly responded that, despite this, Congress has no constitutional authority to force people to act to buy coverage.
Clement attempts to thread a needle.
In 2005, in Gonzales v. Raich, the Court held that under the Commerce Clause, aided by the Necessary and Proper Clause, Congress has the power to prohibit an individual from growing marihuana, not for sale, much less for sale in interstate commerce but instead for his personal use, because this effects the interstate market for marijuana. Only O’Connor and Thomas dissented. The challengers to the constitutionality of the ACA’s individual-mandate provision have focused on the “compel” part; sure, the Congress can prohibit activity something under the Commerce Clause, but it can’t compel activity under the Commerce Clause. But once you acknowledge that the failure to obtain health insurance impacts the interstate market for healthcare by directly impacting who pays the uninsureds’ emergency medical costs, you’ve pretty much conceded—logically, at least—that the Commerce Clause, assisted by the Necessary and Proper Clause, allows Congress to regulate this, irrespective of whether it does this by compelling the purchase of insurance or instead in some other way.
This is true whether the acknowledger is the lawyer for the challengers to the constitutionality of the law or instead the judges hearing the case.
All three of the judges on that panel acknowledged the obvious: that the failure to obtain health insurance impacts the interstate market for healthcare by directly impacting who pays the uninsureds’ emergency medical costs. And Clement didn’t deny it. So much for, “It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual.” It boils down to that only if the federal government isn’t compelling people into commerce also to better regulate the healthcare-coverage market. Most laws, federal as well as state and local ones—including the federal one at issue in Raich—regulate the individual. Whether they better regulate the individual or not.
Clement understands this, of course, but also recognizes the need for a straw to grasp at other than the Commerce Clause one. Thus the civil liberties straw, which the judges themselves offered the statute’s challengers even before Clement (who argued after the federal government’s lawyer, acting solicitor general Neal Katyal, did) began his argument:
Marcus: “If they could compel this, what purchase could they not compel?” …
Dubina: “I can't find any case like this. If we uphold this, are there any limits [on the power of the federal government]? …
Marcus: "I can't find any case [in which the courts upheld the constitutionality of] telling a private person they are compelled to purchase a product in the open market.... Is there anything that suggests Congress can do this?"
Well, no, not precisely. But there are Supreme Court cases that upheld what, for civil liberties purposes, amounts to the same thing. They’re the cases that upheld the constitutionality of the Social Security Act and the Medicare Act by allowing the government to compel contributions to these separate funds, which are not part of the general tax revenue fund (OK, in theory, anyway), for the sole purpose of insuring a retirement income and health insurance for those over age 65. True, the specific “enumerated” Constitutional authority Congress used to enact those laws was the taxing power, not the commerce-regulation power. But that matters only if the commerce-regulation power isn’t broad enough to reach this. If it is—and under Supreme Court precedent, it is, if the failure to have health insurance significantly impacts the healthcare market, which it does—then this distinction is without a difference. You know. A meaningful (or as lawyers say, a material) difference.
In questioning Katyal, the judges were asking for a so-called “limiting principle,” a logical line beyond which federal regulatory authority cannot go. But if the issue is individual liberty, is it really logical to have that line depend on whether the compelled payment is for a product in the open market rather than for a similar product issued by the government? Isn’t the civil liberties issue really what the goal and effect are? That’s certainly the issue in most civil-liberties challenge to the constitutionality of a statute. Why isn’t it, here?
Blowing away the smokescreen erected by the focus on the individual-mandate provision’s use of private insurance—and isn’t it just a smokescreen, really?—why does this infringe on liberty more than the Social Security and Medicare taxes do?
The bottom line, in my opinion, is that the Commerce Clause gives Congress the power to regulate, including the power to compel, without infringing on civil liberties, if what Congress is compelling is what it could compel through its taxing power, without infringing on civil liberties. Congress couldn’t (to use the conservatives’ preferred example) compel Americans, via the tax code, to eat broccoli. Or to buy it. That pretty clearly would violate substantive due process rights, a.k.a. individual liberty rights, even if under the taxing power Congress otherwise would have that authority. But Congress could, for example, extend Medicare to all Americans and amend the Medicare tax law to pay for it, without violating the Constitution’s individual-liberty guarantees.
That’s the limiting principle. At least it should be.
Wednesday, June 8, 2011
The OTHER major issue in today’s ACA appellate argument: Medicaid changes
In the ACA case being argued today in the 11th Circuit Court of Appeals, the plaintiffs are 26 states, one business organization, and at least two individuals. This is the case in which the trial-level judge, Roger Vinson, held the entire ACA unconstitutional on the basis that, he ruled, the mandate provision is unconstitutional because it mandates “activity” and penalizes for “inactivity.”
In my posts last week, I discussed ad nauseam the issue of legal “standing” to challenge the constitutionality of the mandate provision, and said that in the two cases argued in the 4th Circuit last month, and the one argued in the 6th Circuit on June 1, there were big questions about whether the plaintiffs in those cases had standing regarding the mandate issue. In one of the two 4th Circuit, a state, Virginia, was the plaintiff, but in that case, Virginia challenged only the mandate provision. I said that since Virginia is not subject to the mandate to buy health insurance for itself, it’s likely that the 4th Circuit will dismiss that lawsuit, holding that Virginia lacks standing to make the claim. To have “standing,” you have to have a “particularized” (i.e., a concrete, reasonably direct) injury from the act (here, the legislation) at issue.
In the case being argued today, State of Florida v. U.S. Dept. of HHS, the plaintiffs are 26 states, a business group, and at least two individuals. Unlike Virginia in the 4th Circuit case, these 26 states are challenging the ACA’s constitutionality on an issue entirely unrelated to the mandate provision: the provisions in the ACA that significantly alter Medicaid. The states are claiming that those changes amount to an unconstitutional “commandeering” of state policy, via the Medicaid Act as amended by the ACA.
The argument strikes me as absurd. Santa Clara law prof. Brad Joohdeph, who has a blog dedicated entirely to the ACA litigation, has an article-length post today that details and then deconstructs the state’s arguments. His conclusion: that some of the arguments aren’t complete nonsense but that they would require such dramatic and far-reaching alterations to constitutional law that they’re unlikely to succeed in any court, including the Supreme one.
My conclusion: the arguments are nonsense.
In my posts last week, I discussed ad nauseam the issue of legal “standing” to challenge the constitutionality of the mandate provision, and said that in the two cases argued in the 4th Circuit last month, and the one argued in the 6th Circuit on June 1, there were big questions about whether the plaintiffs in those cases had standing regarding the mandate issue. In one of the two 4th Circuit, a state, Virginia, was the plaintiff, but in that case, Virginia challenged only the mandate provision. I said that since Virginia is not subject to the mandate to buy health insurance for itself, it’s likely that the 4th Circuit will dismiss that lawsuit, holding that Virginia lacks standing to make the claim. To have “standing,” you have to have a “particularized” (i.e., a concrete, reasonably direct) injury from the act (here, the legislation) at issue.
In the case being argued today, State of Florida v. U.S. Dept. of HHS, the plaintiffs are 26 states, a business group, and at least two individuals. Unlike Virginia in the 4th Circuit case, these 26 states are challenging the ACA’s constitutionality on an issue entirely unrelated to the mandate provision: the provisions in the ACA that significantly alter Medicaid. The states are claiming that those changes amount to an unconstitutional “commandeering” of state policy, via the Medicaid Act as amended by the ACA.
The argument strikes me as absurd. Santa Clara law prof. Brad Joohdeph, who has a blog dedicated entirely to the ACA litigation, has an article-length post today that details and then deconstructs the state’s arguments. His conclusion: that some of the arguments aren’t complete nonsense but that they would require such dramatic and far-reaching alterations to constitutional law that they’re unlikely to succeed in any court, including the Supreme one.
My conclusion: the arguments are nonsense.
Tuesday, June 7, 2011
‘Markets’ and the ACA: Why the Supreme Court Will Uphold the ACA
In my post last week about the activity/inactivity canard on which the challengers to the constitutionality of the ACA claim, I wrote:
The Commerce Clause gives Congress the power, in the Constitution’s precise words, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” It’s one of the “enumerated,” or specified, powers that the Constitution gives Congress, and which the Necessary and Proper Clause augments.
Last Thursday, Santa Clara U. law professor Brad Joondeph, who has a blog called “aca litigation blog,” wrote trenchantly as the opening paragraph of a lengthy post titled “The regulated activity”:
The larger point, he says, is that
He’s spot-on. But I think it would be profoundly disingenuous for any judge to say that the relevant market is simply the health insurance market. The purpose and the effect of the ACA, including the mandate provision, clearly is to regulate the method by which healthcare is funded in this country.
Joondeph ends his post by saying that the distinction between regulation of the market for health insurance and regulation of the market for healthcare is “obviously of enormous importance.” He writes:
He’s right, but only if, as he says earlier, the market for health insurance is defined so narrowly that health insurance is viewed as a commodity, a product, independent of the product’s purpose and effect. And then, the constitutional issue would not, I think, be whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to regulate the health insurance market, but instead whether this violates some other constitutional limitation. You know: the slippery-slope-to-government-compelled-consumption-of-broccoli argument.
Ultimately, the Supreme Court is unlikely, in my opinion, to say that the relevant market is health insurance rather than healthcare. That would pretty much require the majority to do what they did in Bush v. Gore: pronounce the ruling good for that case only. Which is why I think the ACA will survive the constitutional challenge. But if it doesn’t, it’s likely to be a 5-4 slippery-slope-to-government-compelled-consumption-of-broccoli ruling.
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The most important of the ACA-case appellate arguments is tomorrow afternoon in Atlanta, at the 11th Circuit Court of Appeals. This is the appeal in the case in which 26 states and one private organization are the plaintiffs, and in which the trial-level judge, Roger Vinson, held the entire ACA unconstitutional because, he said, the mandate is too essential to the entire statute to strike that provision down without also striking down the entire ACA. Paul Clement, who, it was announced today, will be representing Arizona in defending the constitutionality of the most draconian of Arizona’s recently enacted immigration-law statutes, and who is representing six Republican House members in defending the constitutionality of the Defense of Marriage Act, is the states’ lead attorney. (Looks like a pattern here, for Clement.)
In his [blog] post, [high-profile rightwing law professor Randy] Barnett pointed out something that was not in the other reports I’d read about [last month’s oral arguments in the 4th Circuit Court of Appeals]: that in a lengthy exchange with [acting Solicitor General Neal] Katyal, [Judge Diana Gribbon] Motz indicated that she buys the activity/non-activity distinction, because she believes the definition of the word “regulate” means “regulate activity.” She kept insisting that if the failure to buy health insurance is inactivity rather than activity, then, under her understanding of the definition of the word “regulate,” Congress couldn’t regulate it.
Katyal flubbed the response to this. Partly. He noted the Supreme Court’s most recent relevant Commerce Clause/Necessary and Proper Clause decision, Gonzales v. Raich, a 2005 opinion that held that the federal statute enacted under the Commerce Clause powers that criminalizes the growing and use of marijuana applies even to homegrown marijuana that is not sold even intrastate, much less in interstate commerce, and that is just for the personal use of the grower. The rationale: that even those actions impact the interstate market for marijuana. Since the Commerce Clause gives Congress the authority to regulate interstate markets, Congress can, under the Necessary and Proper Clause, regulate things that otherwise cannot be regulated under the Commerce power if those things impact the interstate market.
Motz, though, missed the point. Growing marijuana is an activity, she pointed out, so how is Raich relevant to whether Congress can, under the Commerce Clause together with the Necessary and Proper Clause, regulate inactivity, she wanted to know? Well, um, maybe that what’s relevant isn’t the particular reason why the Commerce Clause alone isn’t enough and must be aided by the Necessary and Proper Clause, but instead that if something—whether activity only within a state’s boundary, or instead inactivity, or instead whatever—impacts a market that Congress has the power under the Commerce Clause to regulate, then Congress has the constitutional authority to regulate it as necessary and proper under the Commerce Clause.
Katyal apparently was too dumbfounded to explain this.
The Commerce Clause gives Congress the power, in the Constitution’s precise words, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” It’s one of the “enumerated,” or specified, powers that the Constitution gives Congress, and which the Necessary and Proper Clause augments.
Last Thursday, Santa Clara U. law professor Brad Joondeph, who has a blog called “aca litigation blog,” wrote trenchantly as the opening paragraph of a lengthy post titled “The regulated activity”:
Much ink has been spilled over whether Congress--using its commerce power alone, or its commerce power in conjunction with the Necessary and Proper Clause--has the authority to regulate "inactivity." But there is a logically prior question--a question that is often quite tricky in enumerated powers cases--that must be resolved before reaching the inactivity issue. Namely, one has to define exactly what conduct Congress is regulating in the challenged provision.
[A] critical question that every judge must confront (or at least every judge reaching the merits) is whether the minimum coverage provision (a) regulates conduct in the health insurance market (as the challengers contend), or (b) regulates conduct in the health care services market (as the United States maintains).
In a direct and immediate sense, of course, the individual mandate regulates behavior in the insurance market. But one can easily argue (as with §4306 above) that what it really regulates is the payment for services in the health care service market. Sure, the provision, when examined in isolation, only directly concerns the purchase of health insurance. But the broader scheme, taken as a whole, shows that what Congress was actually regulating--of which the individual mandate is only a part--is the financing of health care services. Congress logically cared whether people carry health coverage not for its own sake, but due to its implications for the financing of services in the health care market, the ultimate object of its regulation.
So which is it? Which market does the minimum coverage provision actually regulate?
The larger point, he says, is that
the relevant “regulated activity”—or, phrased differently, the relevant regulated market—is quite open to debate [and that the] fact that the challenged provision only regulates a particular activity directly (… the decision whether to acquire health insurance in the case of the ACA) does not answer the question. The regulated activity or market, for purposes of evaluating whether the challenged provision is within Congress's enumerated powers, may well be different than the conduct that the provision directly governs. Answering the critical question is not as simple as examining the empirical realities of the challenged provision by itself.
He’s spot-on. But I think it would be profoundly disingenuous for any judge to say that the relevant market is simply the health insurance market. The purpose and the effect of the ACA, including the mandate provision, clearly is to regulate the method by which healthcare is funded in this country.
Joondeph ends his post by saying that the distinction between regulation of the market for health insurance and regulation of the market for healthcare is “obviously of enormous importance.” He writes:
For if the relevant market is only that for health insurance, the minimum coverage requirement looks truly unprecedented (and constitutionally problematic). But if the relevant market is that for health care services, then what Congress is regulating is a market in which virtually every American activelyparticipates--and the minimum coverage provision is merely regulating the commercial terms on which thatactive participation occurs. And this framing, of course, makes it seem well within Congress's authority to regulate interstate commerce.
He’s right, but only if, as he says earlier, the market for health insurance is defined so narrowly that health insurance is viewed as a commodity, a product, independent of the product’s purpose and effect. And then, the constitutional issue would not, I think, be whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to regulate the health insurance market, but instead whether this violates some other constitutional limitation. You know: the slippery-slope-to-government-compelled-consumption-of-broccoli argument.
Ultimately, the Supreme Court is unlikely, in my opinion, to say that the relevant market is health insurance rather than healthcare. That would pretty much require the majority to do what they did in Bush v. Gore: pronounce the ruling good for that case only. Which is why I think the ACA will survive the constitutional challenge. But if it doesn’t, it’s likely to be a 5-4 slippery-slope-to-government-compelled-consumption-of-broccoli ruling.
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The most important of the ACA-case appellate arguments is tomorrow afternoon in Atlanta, at the 11th Circuit Court of Appeals. This is the appeal in the case in which 26 states and one private organization are the plaintiffs, and in which the trial-level judge, Roger Vinson, held the entire ACA unconstitutional because, he said, the mandate is too essential to the entire statute to strike that provision down without also striking down the entire ACA. Paul Clement, who, it was announced today, will be representing Arizona in defending the constitutionality of the most draconian of Arizona’s recently enacted immigration-law statutes, and who is representing six Republican House members in defending the constitutionality of the Defense of Marriage Act, is the states’ lead attorney. (Looks like a pattern here, for Clement.)
Tuesday, May 31, 2011
New wrinkles in the ACA litigation – Part II
Okay, well, now y’all know from reading Part I that under the Constitution’s Art. III requirement that plaintiffs in lawsuits have some “particularized” (and ya know what that means, from reading Part I) injury or be in imminent danger of suffering one, and that the imminent danger can, theoretically, be hardship due to the anticipated violation of the plaintiffs’ rights. So you’ll be able to sail right through the federal-court-jurisdiction questions in the Civil Procedure section of the multi-state part of the bar exam.
You’ll also be able to understand what happened last Friday in the ACA case scheduled for oral argument on Wednesday in the Sixth Circuit federal appellate court.
The case is Thomas More Law Center, et al. v. Obama. Thomas More Law Center is a rightwing organization whose purpose is to challenge the constitutionality of laws or government policies or government actions against a particular individual that the far right finds offensive. Almost always, the underlying cause is a culture-wars issue, although sometimes the immediate issue being litigated is a more general procedural or constitutional-rights issue.
For example, a few weeks ago, a friend asked me whether I would be willing to advise a Thomas More lawyer on a procedural issue concerning access to federal court for a couple who are my friend’s friends and who are entwined in a legal morass stemming from their protests at an abortion clinic, for which they were prosecuted. My friend knows I know loads about the procedural issue, known as the Rooker-Feldmandoctrine, an absurd Supreme Court-created bar to access to federal court in order to challenge the constitutionality of state-court actions. I was happy to oblige, partly because this couple’s due process rights, were, in my opinion, violated, and partly because that doctrine itself violates the Fourteenth Amendment. On March 7, in an opinion called Skinner v. Switzer, the Supreme Court finally killed the doctrine, or tried to; because Skinner does not expressly say, “We overrule Dist. of Columbia Ct. of App. v. Feldman,” the 1983 opinion that created the doctrine on the basis of the Court’s interpretation of a statute that was amended in 1986 to remove the part of that statute that the Court was interpreting, some of the lower federal courts are ignoring Skinner. Just as I’d predicted on Mar. 7 when I read the opinion.
But I digress.
The et al. are four individuals who are members of the Thomas More organization. (It’s apparently an organization that has a membership, like the NAACP, the ACLU and the NRA, rather than just a law firm.) The organization’s standing to sue is derivative of its members’ standing—the ones that do have standing, that is, and only the members who actually will be forced by the ACA to buy health insurance or pay the penalty even arguably have standing. Turns out that the only one of the individual plaintiffs who, at least from the plaintiffs’ earlier filings, claimed that injury and provided specifics about it—that she did not have health insurance and that the $700 per month she said she would have to pay under the ACA would cause her significant financial hardship—actually bought health insurance through her employer last October, after the lower-court decision, for less than $400. The plaintiffs revealed this in their response to the court’s briefing request, which they filed last Wednesday.
Two of the other four individuals are not even claiming a lack of health insurance and therefore any injury from the mandate. The other one—his name is Steven Hyder—has claimed that the mandate “negatively impacts me now because I will have to reorganize my affairs and essentially change the way I live to meet the government’s demands,” but he provided no specifics.
Voila! On Friday, the government filed a motion asking the court to dismiss the appeal because, the government said, no plaintiff has standing to litigate this because no plaintiff has shown that he or she would suffer an injury from the mandate. Hyder's claim, the government says, is a mere conclusory statement; without facts supporting the conclusion, it’s not enough to establish standing. And the others clearly haven’t established standing. And, because the trial-level judge, who is based in the Eastern District of Michigan, ruled that the ACA is constitutional, the government wants the appellate court not to “vacate” (hold null and void) that judge’s ruling, an action that normally the appellate court would do in such a circumstance.
The government’s request that the appellate court dismiss the appeal yet leave the trial judge’s ruling intact strikes me as pointless. Yes, the plaintiff who voluntarily bought health insurance in October did have standing when the lawsuit was filed and when the trial judge issued his ruling last summer. But trial-court rulings have no effect except in the case in which the ruling was issued. They don’t even set the law in that court’s own judicial district. That ruling, if it remains in effect although the appeal is dismissed, probably wouldn’t even effect the rights of these plaintiffs—most significantly, of course, the Thomas More Law Center—because they were denied the right to an appeal.
At the oral argument on Wednesday, or before that in a filed response to the government’s motion, the Thomas More lawyers will get specific about the basis for Hyder’s claim of financial hardship and about whether the other two individuals now have health insurance. If they all have health insurance, then, the mandate won’t cause them financial hardship or, irrespectively of finances, force them to do something they don’t want to do. They don’t have standing.
But, assuredly, some plaintiff in some other ACA case does. Or will.
You’ll also be able to understand what happened last Friday in the ACA case scheduled for oral argument on Wednesday in the Sixth Circuit federal appellate court.
The case is Thomas More Law Center, et al. v. Obama. Thomas More Law Center is a rightwing organization whose purpose is to challenge the constitutionality of laws or government policies or government actions against a particular individual that the far right finds offensive. Almost always, the underlying cause is a culture-wars issue, although sometimes the immediate issue being litigated is a more general procedural or constitutional-rights issue.
For example, a few weeks ago, a friend asked me whether I would be willing to advise a Thomas More lawyer on a procedural issue concerning access to federal court for a couple who are my friend’s friends and who are entwined in a legal morass stemming from their protests at an abortion clinic, for which they were prosecuted. My friend knows I know loads about the procedural issue, known as the Rooker-Feldmandoctrine, an absurd Supreme Court-created bar to access to federal court in order to challenge the constitutionality of state-court actions. I was happy to oblige, partly because this couple’s due process rights, were, in my opinion, violated, and partly because that doctrine itself violates the Fourteenth Amendment. On March 7, in an opinion called Skinner v. Switzer, the Supreme Court finally killed the doctrine, or tried to; because Skinner does not expressly say, “We overrule Dist. of Columbia Ct. of App. v. Feldman,” the 1983 opinion that created the doctrine on the basis of the Court’s interpretation of a statute that was amended in 1986 to remove the part of that statute that the Court was interpreting, some of the lower federal courts are ignoring Skinner. Just as I’d predicted on Mar. 7 when I read the opinion.
But I digress.
The et al. are four individuals who are members of the Thomas More organization. (It’s apparently an organization that has a membership, like the NAACP, the ACLU and the NRA, rather than just a law firm.) The organization’s standing to sue is derivative of its members’ standing—the ones that do have standing, that is, and only the members who actually will be forced by the ACA to buy health insurance or pay the penalty even arguably have standing. Turns out that the only one of the individual plaintiffs who, at least from the plaintiffs’ earlier filings, claimed that injury and provided specifics about it—that she did not have health insurance and that the $700 per month she said she would have to pay under the ACA would cause her significant financial hardship—actually bought health insurance through her employer last October, after the lower-court decision, for less than $400. The plaintiffs revealed this in their response to the court’s briefing request, which they filed last Wednesday.
Two of the other four individuals are not even claiming a lack of health insurance and therefore any injury from the mandate. The other one—his name is Steven Hyder—has claimed that the mandate “negatively impacts me now because I will have to reorganize my affairs and essentially change the way I live to meet the government’s demands,” but he provided no specifics.
Voila! On Friday, the government filed a motion asking the court to dismiss the appeal because, the government said, no plaintiff has standing to litigate this because no plaintiff has shown that he or she would suffer an injury from the mandate. Hyder's claim, the government says, is a mere conclusory statement; without facts supporting the conclusion, it’s not enough to establish standing. And the others clearly haven’t established standing. And, because the trial-level judge, who is based in the Eastern District of Michigan, ruled that the ACA is constitutional, the government wants the appellate court not to “vacate” (hold null and void) that judge’s ruling, an action that normally the appellate court would do in such a circumstance.
The government’s request that the appellate court dismiss the appeal yet leave the trial judge’s ruling intact strikes me as pointless. Yes, the plaintiff who voluntarily bought health insurance in October did have standing when the lawsuit was filed and when the trial judge issued his ruling last summer. But trial-court rulings have no effect except in the case in which the ruling was issued. They don’t even set the law in that court’s own judicial district. That ruling, if it remains in effect although the appeal is dismissed, probably wouldn’t even effect the rights of these plaintiffs—most significantly, of course, the Thomas More Law Center—because they were denied the right to an appeal.
At the oral argument on Wednesday, or before that in a filed response to the government’s motion, the Thomas More lawyers will get specific about the basis for Hyder’s claim of financial hardship and about whether the other two individuals now have health insurance. If they all have health insurance, then, the mandate won’t cause them financial hardship or, irrespectively of finances, force them to do something they don’t want to do. They don’t have standing.
But, assuredly, some plaintiff in some other ACA case does. Or will.
New wrinkles in the ACA litigation – Part I
On May 23, the three-judge federal Fourth Circuit appellate panel that two weeks ago heard oral argument in the two cases in Virginia challenging the constitutionality of the ACA issued an order asking the parties to brief the question of whether a federal statute known as the Tax Anti-Injunction removes the federal courts’ “jurisdiction”—i.e., legal authority—to hear a case filed “for the purpose of restraining the assessment or collection of any tax.” The statute, subtitled “Prohibition of suits to restrain assessment or collection,” is part of the IRS Code. The relevant part of the statute reads:
The panel asked for briefing on three questions. The first one has two parts. It asks, generically, whether the statute, when applicable, divests the courts of jurisdiction to hear this type of case, and, if so, whether it does that in these cases. The two parts, each of which references a particular earlier Supreme Court holding—one in a 1962 opinion called J.L. Enochs v. Williams Packing & Navigation Co., that created an exception to the statute when the statute otherwise would apply, the other a 1974 opinion called, Bob Jones University v. Simon, saying that in that particular case, the exception created in Williams Packing doesn’t apply—appears to me to be just a clumsy way of asking whether, if the penalty assessment is a “tax,” the ACA cases come within the exception created by Williams Packing. Clearly, the statute indicates that when it is applicable, it divests the courts of jurisdiction to hear the case.
The second question asks whether “a challenged exaction”—here, the fee that must be paid through the IRS for failure to purchase health insurance—can qualify as a “tax” under the Anti-Injunction Act whether or not it qualifies as a tax for purposes of Congress’s taxing power under Article I of the Constitution, the part of the Constitution that lists most of Congress’s powers.
The third question asks whether, if the Anti-Injunction Act does apply to these lawsuits—that is, if the exaction is considered a tax for purposes of the Act—the plaintiffs (the State of Virginia, in one of the lawsuits; Liberty University and a few named individuals, in the other lawsuit) will have “the ability to challenge the exaction … in a refund suit or otherwise.” Williams Packing held that the statute would violate the Fifth Amendment’s due process clause unless an exception to the statute’s applicability is created if there otherwise will never be an avenue in which the plaintiff can challenge the constitutionality of the tax and obtain redress if the tax is unconstitutional; that’s the exception that Williams Packing creates. But the ability to sue to request a refund of the tax once the tax has been paid usually will suffice, according to Williams Packing, for due process purposes.
The two ACA cases were decided at the trial-court level by different judges. The judge in the case filed by Virginia ruled that the “mandate” part of the ACA is unconstitutional. The judge in the Liberty U. case ruled the entire ACA constitutional.
The Anti-Tax Injunction Act was never an issue in the Virginia case, because Virginia itself will not be subject to the penalty for failure to obtain health insurance. In fact, for that reason, the three-judge panel will dismiss that lawsuit, saying that Virginia has no legal “standing”—no right—to challenge the statute’s constitutionality because the state will have no concrete injury from the statute. That much was clear from the oral argument. The Constitution’s Article III, which creates the federal judicial branch, gives the federal courts the power to hear only certain identified types of “cases” or “controversies.” The Supreme Court has always interpreted the case or-controversy” language to mean that only parties that have sustained or are about to sustain a “particularized”—i.e., a concrete—injury, have “standing” to sue. You can’t sue if your injury is only hypothetical. You have to have an “injury in fact.”
But at least some of the individuals in the Liberty U. case, if not the U. itself, apparently do have standing to challenge the mandate’s penalty fee. And the Anti-Injunction Act became an issue in that case because the Justice Dept. had called the penalty fee a “tax.” Rather than relying just on the power that the Constitution gives Congress to regulate commerce, and its authority under the Constitution to enact laws “necessary and proper” to execute its commerce-regulating power, the Justice Dept. claimed that Congress also had the authority under its taxing power to enact the ACA, including the mandate provision. The Justice Dept. then invoked the Tax Anti-Injunction Act and claimed that the court lacked jurisdiction to hear the part of the case that challenges the constitutionality of the mandate and the penalty “tax.” But the trial-level judge rejected the characterization of the penalty fee as a tax, saying it’s more accurately characterized as a regulatory penalty. Holding that he had the authority to consider the constitutionality of the ACA, he ruled the law constitutional.
The Justice Dept. didn’t raise the Tax Anti-Injunction issue on appeal. But the judges now have, and what’s clear from the May 23 order is that, at least at this point, they plan to characterize the mandate penalty as a tax for purposes of that statute. That’s a curious view, since the purpose of the taxing power is to raise revenue and the purpose of the Anti-Injunction Act is to allow the revenue to be raised, unencumbered by court injunctions. The purpose of the ACA’s mandate is to require almost everyone to have health insurance, and the point of the penalty is to require everyone to comply with that mandate. Which is why the panel apparently has concluded, accurately, in my opinion, that the penalty is not a tax under Article I of the Constitution. And which is why, if that the Tax Injunction Act nonetheless applies to the penalty, the Supreme Court will reverse them. And, on this issue, it should. The penalty does raise revenue, but only incidentally, just as other government fines, including fines as criminal sentences, do. But fines aren’t taxes.
There’s also, at least in my opinion, a big question whether the Anti-Injunction Act applies even when what’s at issue is clearly a tax, if, as here, what the plaintiffs are asking for is just a declaration (called a declaratory judgment) that the statute is unconstitutional, rather than asking the court to enjoin collection of the tax. In Williams Packing and Bob Jones University, the plaintiffs were asking the court to enjoin the collection of the tax. In the ACA cases, they’re asking the court to declare the statute, or at least the mandate provision, to which the penalty fee is only an enforcement tool, unconstitutional. A purpose of the lawsuits is to restrain the assessment or collection of the fee, but they’re not asking the court to do that directly.
Meanwhile, in an ACA case scheduled for oral argument on June 1 in the Sixth Circuit appellate court, the court that hears federal appeals from Michigan, Ohio, Kentucky and Tennessee, the three-judge panel asked the parties on May 12, the day after the argument in the Virginia case, to briefly brief three questions, two of which concern whether the controversy is “ripe” for resolution—that is, whether, given that the ACA mandate doesn’t begin until 2014, the plaintiffs have alleged an injury in fact, and, if not, whether they’ve alleged “an ‘imminent injury’ creating a case or actual controversy under Article Ill and the Declaratory Judgment Act” this long before the effective date of the mandate provision. The panel also requested briefing on whether the IRS’s enforcement mechanisms impact whether there is a current or imminent injury because, the plaintiffs claim, they must plan long ahead for this extra expense.
The panel also asked a question about the substance of the case: whether these plaintiffs are claiming that the statute is unconstitutional on its face—i.e., that it is unconstitutional vis-à-vis everyone—or whether instead they’re just claiming that the statute is unconstitutional as it would be applied to them and others like them but not to everyone.
The parties filed their brief briefs on Wednesday. And from there, the plot thickens.
Part II to follow.
Except as provided in sections 6015 (e), 6212 (a) and (c), 6213 (a), 6225 (b), 6246 (b), 6330 (e)(1), 6331 (i), 6672 (c), 6694 (c), and 7426 (a) and (b)(1),7429 (b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.
The panel asked for briefing on three questions. The first one has two parts. It asks, generically, whether the statute, when applicable, divests the courts of jurisdiction to hear this type of case, and, if so, whether it does that in these cases. The two parts, each of which references a particular earlier Supreme Court holding—one in a 1962 opinion called J.L. Enochs v. Williams Packing & Navigation Co., that created an exception to the statute when the statute otherwise would apply, the other a 1974 opinion called, Bob Jones University v. Simon, saying that in that particular case, the exception created in Williams Packing doesn’t apply—appears to me to be just a clumsy way of asking whether, if the penalty assessment is a “tax,” the ACA cases come within the exception created by Williams Packing. Clearly, the statute indicates that when it is applicable, it divests the courts of jurisdiction to hear the case.
The second question asks whether “a challenged exaction”—here, the fee that must be paid through the IRS for failure to purchase health insurance—can qualify as a “tax” under the Anti-Injunction Act whether or not it qualifies as a tax for purposes of Congress’s taxing power under Article I of the Constitution, the part of the Constitution that lists most of Congress’s powers.
The third question asks whether, if the Anti-Injunction Act does apply to these lawsuits—that is, if the exaction is considered a tax for purposes of the Act—the plaintiffs (the State of Virginia, in one of the lawsuits; Liberty University and a few named individuals, in the other lawsuit) will have “the ability to challenge the exaction … in a refund suit or otherwise.” Williams Packing held that the statute would violate the Fifth Amendment’s due process clause unless an exception to the statute’s applicability is created if there otherwise will never be an avenue in which the plaintiff can challenge the constitutionality of the tax and obtain redress if the tax is unconstitutional; that’s the exception that Williams Packing creates. But the ability to sue to request a refund of the tax once the tax has been paid usually will suffice, according to Williams Packing, for due process purposes.
The two ACA cases were decided at the trial-court level by different judges. The judge in the case filed by Virginia ruled that the “mandate” part of the ACA is unconstitutional. The judge in the Liberty U. case ruled the entire ACA constitutional.
The Anti-Tax Injunction Act was never an issue in the Virginia case, because Virginia itself will not be subject to the penalty for failure to obtain health insurance. In fact, for that reason, the three-judge panel will dismiss that lawsuit, saying that Virginia has no legal “standing”—no right—to challenge the statute’s constitutionality because the state will have no concrete injury from the statute. That much was clear from the oral argument. The Constitution’s Article III, which creates the federal judicial branch, gives the federal courts the power to hear only certain identified types of “cases” or “controversies.” The Supreme Court has always interpreted the case or-controversy” language to mean that only parties that have sustained or are about to sustain a “particularized”—i.e., a concrete—injury, have “standing” to sue. You can’t sue if your injury is only hypothetical. You have to have an “injury in fact.”
But at least some of the individuals in the Liberty U. case, if not the U. itself, apparently do have standing to challenge the mandate’s penalty fee. And the Anti-Injunction Act became an issue in that case because the Justice Dept. had called the penalty fee a “tax.” Rather than relying just on the power that the Constitution gives Congress to regulate commerce, and its authority under the Constitution to enact laws “necessary and proper” to execute its commerce-regulating power, the Justice Dept. claimed that Congress also had the authority under its taxing power to enact the ACA, including the mandate provision. The Justice Dept. then invoked the Tax Anti-Injunction Act and claimed that the court lacked jurisdiction to hear the part of the case that challenges the constitutionality of the mandate and the penalty “tax.” But the trial-level judge rejected the characterization of the penalty fee as a tax, saying it’s more accurately characterized as a regulatory penalty. Holding that he had the authority to consider the constitutionality of the ACA, he ruled the law constitutional.
The Justice Dept. didn’t raise the Tax Anti-Injunction issue on appeal. But the judges now have, and what’s clear from the May 23 order is that, at least at this point, they plan to characterize the mandate penalty as a tax for purposes of that statute. That’s a curious view, since the purpose of the taxing power is to raise revenue and the purpose of the Anti-Injunction Act is to allow the revenue to be raised, unencumbered by court injunctions. The purpose of the ACA’s mandate is to require almost everyone to have health insurance, and the point of the penalty is to require everyone to comply with that mandate. Which is why the panel apparently has concluded, accurately, in my opinion, that the penalty is not a tax under Article I of the Constitution. And which is why, if that the Tax Injunction Act nonetheless applies to the penalty, the Supreme Court will reverse them. And, on this issue, it should. The penalty does raise revenue, but only incidentally, just as other government fines, including fines as criminal sentences, do. But fines aren’t taxes.
There’s also, at least in my opinion, a big question whether the Anti-Injunction Act applies even when what’s at issue is clearly a tax, if, as here, what the plaintiffs are asking for is just a declaration (called a declaratory judgment) that the statute is unconstitutional, rather than asking the court to enjoin collection of the tax. In Williams Packing and Bob Jones University, the plaintiffs were asking the court to enjoin the collection of the tax. In the ACA cases, they’re asking the court to declare the statute, or at least the mandate provision, to which the penalty fee is only an enforcement tool, unconstitutional. A purpose of the lawsuits is to restrain the assessment or collection of the fee, but they’re not asking the court to do that directly.
Meanwhile, in an ACA case scheduled for oral argument on June 1 in the Sixth Circuit appellate court, the court that hears federal appeals from Michigan, Ohio, Kentucky and Tennessee, the three-judge panel asked the parties on May 12, the day after the argument in the Virginia case, to briefly brief three questions, two of which concern whether the controversy is “ripe” for resolution—that is, whether, given that the ACA mandate doesn’t begin until 2014, the plaintiffs have alleged an injury in fact, and, if not, whether they’ve alleged “an ‘imminent injury’ creating a case or actual controversy under Article Ill and the Declaratory Judgment Act” this long before the effective date of the mandate provision. The panel also requested briefing on whether the IRS’s enforcement mechanisms impact whether there is a current or imminent injury because, the plaintiffs claim, they must plan long ahead for this extra expense.
The panel also asked a question about the substance of the case: whether these plaintiffs are claiming that the statute is unconstitutional on its face—i.e., that it is unconstitutional vis-à-vis everyone—or whether instead they’re just claiming that the statute is unconstitutional as it would be applied to them and others like them but not to everyone.
The parties filed their brief briefs on Wednesday. And from there, the plot thickens.
Part II to follow.
Friday, May 27, 2011
More on the activity/inactivity canard in the ACA litigation
Last week, one of the law blogs I read regularly mentioned a post from May 11 on a law blog read regularly by a lot of law geeks (but not by me) about the oral argument in those cases a day earlier. The blog is The Volokh Conspiracy. Its bloggers are prominent rightwing or libertarian-right law profs, most of whom once were law clerks to a conservative Supreme Court justice. This particular post was by Georgetown law prof. Randy Barnett, who is a veritable font of rightwing legal theory and suggestions for rightwing laws and legal arguments.
He also is, from what I can tell, the farthest right of that blog’s bloggers. Earlier this year, one of the big, big names on that blog, Orin Kerr, wrote that he was pretty darned certain that under the Supreme Court’s Commerce Clause and Necessary and Proper Clause rulings, the ACA was constitutional. One of the other bloggers there—probably Barnett, but I don’t recall—disputed that.
Anyway, in his May 11 post, Barnett recounted an exchange between acting Solicitor General Neal Katyal, who was arguing the appeal on behalf of the government, and panel judge Diana Gribbon Motz, a Clinton appointee. To refresh your memory from two weeks ago, all three of the panel members are Dem appointees, the other two of them appointed by Obama. Also to refresh your memory, the main challenge to the constitutionality of the ACA is that the Constitution’s Commerce Clause does not give Congress the authority to regulate inactivity. To which the government has responded that the decision to not buy health insurance and to instead rely upon the largess of the government, hospitals and ultimately those who do pay health insurance premiums to get emergency medical treatment, is activity. And that in any event, under the Supreme Court’s longtime Commerce Clause jurisprudence, that Clause coupled with the Necessary and Proper Clause gives Congress the power to regulate markets and that therefore there is no activity/inactivity distinction for Commerce Clause purposes.
The Commerce Clause gives Congress the power, in the Constitution’s precise words, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.
In his post, Barnett pointed out something that was not in the other reports I’d read about the oral arguments: that in a lengthy exchange with Katyal, Motz indicated that she buys the activity/non-activity distinction, because she believes the definition of the word “regulate” means “regulate activity.” She kept insisting that if the failure to buy health insurance is inactivity rather than activity, then, under her understanding of the definition of the word “regulate,” Congress couldn’t regulate it.
Katyal flubbed the response to this. Partly. He noted the Supreme Court’s most recent relevant Commerce Clause/Necessary and Proper Clause decision, Gonzales v. Raich, a 2005 opinion that held that the federal statute enacted under the Commerce Clause powers that criminalizes the growing and use of marijuana applies even to homegrown marijuana that is not sold even intrastate, much less in interstate commerce, and that is just for the personal use of the grower. The rationale: that even those actions impact the interstate market for marijuana. Since the Commerce Clause gives Congress the authority to regulate interstate markets, Congress can, under the Necessary and Proper Clause, regulate things that otherwise cannot be regulated under the Commerce power if those things impact the interstate market.
Motz, though, missed the point.
Growing marijuana is an activity, she pointed out, so how is Raich relevant to whether Congress can, under the Commerce Clause together with the Necessary and Proper Clause, regulate inactivity, she wanted to know? Well, um, maybe that what’s relevant isn’t the particular reason why the Commerce Clause alone isn’t enough and must be aided by the Necessary and Proper Clause, but instead that if something—whether activity only within a state’s boundary, or instead inactivity, or instead whatever—impacts a market that Congress has the power under the Commerce Clause to regulate, then Congress has the constitutional authority to regulate it as necessary and proper under the Commerce Clause.
Katyal apparently was too dumbfounded to explain this. According to a report I read, he was assigned to handle those oral arguments only a two or three days before the date of the arguments, and that might be one reason; the top person at the Solicitor General’s office normally personally only does that in the Supreme Court (and then, rarely).
A day or two after those oral arguments, Obama’s nomination of a man named Donald Verrilli to replace Elena Kagan as Solicitor General was voted out of committee. It’s scheduled for a full vote in the Senate on June 6. Here’s some of what the New York Times said about Verrilli’s background last January when Obama nominated him:
Verrilli won’t be arguing the Sixth Circuit ACA-case appeal there on June 1. But presumably, he’ll be arguing the upcoming ACA appeals in the other federal appellate courts-including the two in the Eleventh Circuit, one of which is the most high-profile one nationally because the lower-court judge, Roger Vinson, pronounced the entire ACA unconstitutional, the other in which the lower-court judge ruled the entire statute constitutional. And he’ll eventually defend the statute’s constitutionality in the Supreme Court. Enough said. I’m pretty sure of it.
By which I mean that the case will be argued for the government as sharply and expertly as the cases will be argued for the other side by former Bush Solicitor General Paul Clement, who, now in private practice, was retained to represent the statute-challengers in the Roger Vinson case in the Eleventh Circuit. Unless, of course, Verrilli’s nomination is filibustered.
He also is, from what I can tell, the farthest right of that blog’s bloggers. Earlier this year, one of the big, big names on that blog, Orin Kerr, wrote that he was pretty darned certain that under the Supreme Court’s Commerce Clause and Necessary and Proper Clause rulings, the ACA was constitutional. One of the other bloggers there—probably Barnett, but I don’t recall—disputed that.
Anyway, in his May 11 post, Barnett recounted an exchange between acting Solicitor General Neal Katyal, who was arguing the appeal on behalf of the government, and panel judge Diana Gribbon Motz, a Clinton appointee. To refresh your memory from two weeks ago, all three of the panel members are Dem appointees, the other two of them appointed by Obama. Also to refresh your memory, the main challenge to the constitutionality of the ACA is that the Constitution’s Commerce Clause does not give Congress the authority to regulate inactivity. To which the government has responded that the decision to not buy health insurance and to instead rely upon the largess of the government, hospitals and ultimately those who do pay health insurance premiums to get emergency medical treatment, is activity. And that in any event, under the Supreme Court’s longtime Commerce Clause jurisprudence, that Clause coupled with the Necessary and Proper Clause gives Congress the power to regulate markets and that therefore there is no activity/inactivity distinction for Commerce Clause purposes.
The Commerce Clause gives Congress the power, in the Constitution’s precise words, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.
In his post, Barnett pointed out something that was not in the other reports I’d read about the oral arguments: that in a lengthy exchange with Katyal, Motz indicated that she buys the activity/non-activity distinction, because she believes the definition of the word “regulate” means “regulate activity.” She kept insisting that if the failure to buy health insurance is inactivity rather than activity, then, under her understanding of the definition of the word “regulate,” Congress couldn’t regulate it.
Katyal flubbed the response to this. Partly. He noted the Supreme Court’s most recent relevant Commerce Clause/Necessary and Proper Clause decision, Gonzales v. Raich, a 2005 opinion that held that the federal statute enacted under the Commerce Clause powers that criminalizes the growing and use of marijuana applies even to homegrown marijuana that is not sold even intrastate, much less in interstate commerce, and that is just for the personal use of the grower. The rationale: that even those actions impact the interstate market for marijuana. Since the Commerce Clause gives Congress the authority to regulate interstate markets, Congress can, under the Necessary and Proper Clause, regulate things that otherwise cannot be regulated under the Commerce power if those things impact the interstate market.
Motz, though, missed the point.
Growing marijuana is an activity, she pointed out, so how is Raich relevant to whether Congress can, under the Commerce Clause together with the Necessary and Proper Clause, regulate inactivity, she wanted to know? Well, um, maybe that what’s relevant isn’t the particular reason why the Commerce Clause alone isn’t enough and must be aided by the Necessary and Proper Clause, but instead that if something—whether activity only within a state’s boundary, or instead inactivity, or instead whatever—impacts a market that Congress has the power under the Commerce Clause to regulate, then Congress has the constitutional authority to regulate it as necessary and proper under the Commerce Clause.
Katyal apparently was too dumbfounded to explain this. According to a report I read, he was assigned to handle those oral arguments only a two or three days before the date of the arguments, and that might be one reason; the top person at the Solicitor General’s office normally personally only does that in the Supreme Court (and then, rarely).
A day or two after those oral arguments, Obama’s nomination of a man named Donald Verrilli to replace Elena Kagan as Solicitor General was voted out of committee. It’s scheduled for a full vote in the Senate on June 6. Here’s some of what the New York Times said about Verrilli’s background last January when Obama nominated him:
Before joining the administration (in 2009), Mr. Verrilli spent two decades as a prominent litigator with the law firm of Jenner & Block, where he was chairman of its Supreme Court practice group, while also teaching First Amendment law as an adjunct professor at Georgetown law school.
He participated in more than 100 Supreme Court cases and argued 12 of them. He has also argued about 35 times before federal appeals courts and state supreme courts.
Verrilli won’t be arguing the Sixth Circuit ACA-case appeal there on June 1. But presumably, he’ll be arguing the upcoming ACA appeals in the other federal appellate courts-including the two in the Eleventh Circuit, one of which is the most high-profile one nationally because the lower-court judge, Roger Vinson, pronounced the entire ACA unconstitutional, the other in which the lower-court judge ruled the entire statute constitutional. And he’ll eventually defend the statute’s constitutionality in the Supreme Court. Enough said. I’m pretty sure of it.
By which I mean that the case will be argued for the government as sharply and expertly as the cases will be argued for the other side by former Bush Solicitor General Paul Clement, who, now in private practice, was retained to represent the statute-challengers in the Roger Vinson case in the Eleventh Circuit. Unless, of course, Verrilli’s nomination is filibustered.
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