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Obamacare and Chief Justice Roberts

June 28, 2012 by 6 Comments
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Who is Chief Justice Roberts?

Is he the methodic, calculating, conservative revolutionary, that Obama had the foresight to oppose for confirmation to the Court based on his inability to discern what was in the now-Chief Justice’s heart?  Is he the pragmatic conservator of the Court’s institutional capital at the expense of the Court’s obligation to make authoritative constitutional pronouncements?  Or is he yet another conservative appointee driven ever left by mysterious unidentifiable substances in the Washington D.C. water supply?

And what to make of the Court’s decision today upholding Obamacare as a valid exercise of Congress’ taxing power?

Is it an unmitigated disaster that spells inevitable socialistic decline for America — assuming of course Mitt Romney and Orrin Hatch can’t team up on Democrats using the Senate Finance Committee and Oval Office? ;)  Is it a secret long-game win for conservatives masterminded by the Chief Justice at the expense of the unwitting liberals now praising his name?

So many questions to answer, so little time.

Rather than bore you with a treatise, I’ll just give you a few of my thoughts after reviewing the opinions (and trust me, this will be long enough).

1.  This decision is an unqualified loss for conservatives.  Though Roberts may have something of a long game in mind here (see point 4 below), it’s really hard to spin this as a win for conservatives.  Overall, the thrust of the opinion is, “you can find a way to uphold congressional action, even when it’s an unprecedented extension of federal power.”

To be fair, Roberts did throw conservatives some bones in his opinion. For example, it’s clear that he purposefully reached the Commerce Clause issue unnecessarily, in order to send a message about mandates.  His explanation to the contrary was unpersuasive (to me, anyway):

JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that § 5000A can be upheld under the taxing power. Post, at 37.  But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command  that it is necessary to reach the taxing power question.  And it is only because we have a duty to construe a statute to save it, if fairly possible, that § 5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

So it’s a tax only because it’s not a penalty?  Pretty weak . . . and that means he reached the issue to send a message.  Whatever his reasons for upholding, he obviously wanted to make clear that federal efforts to mandate conduct as a way of bootstrapping in to Commerce Clause authority are non-starters.

And one has to acknowledge that Roberts did refuse to countenance an extension of Congress’ spending/commandeering power.  Ultimately, however, it’s hard to see how that does much for federalist types when the practical thrust of his opinion is that even statutes that are written as exercises of the Commerce Clause authority, and exceed that authority, are nonetheless constitutional taxes (even when not denominated that way and denied publicly).  This allows Congress to avoid the political consequences of enacting taxes while pretty much giving Congress the type of unbridled legislative authority rejected under the Commerce Clause.

2.  Robert’s opinion will not make it procedurally easier to repeal Obamacare politically.  Today’s decision may very well have the effect of galvanizing conservatives for the upcoming elections (apparently it’s been a monetary windfall for Mitt), but those claiming (and I’ve seen a few posts on this today) that Justice Roberts judicially declared Obamacare a tax in order to ensure that, under the Democrats own congressional rules, efforts to repeal would be immune from filibuster (that captures the substance if not the precise form of the argument), clearly didn’t read Justice Roberts careful parsing of the difference between statutory and constitutional tax status:

Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.”  Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally.

Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congress may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.”

The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily described “taxes” even where that label was inaccurate.

The desperate efforts of conservatives to label this decision a “win” for them remind me of Democrats attempts to rationalize President Obama caving to Republicans on the debt ceiling as grand liberal strategy.

3.  Roberts tax opinion is more persuasive than conservatives want to admit.  Although all the focus leading up to the case was on the Commerce Clause, Roberts’ opinion boils down to this:  constitutional authority to legislate depends on the substance of the legislation and not congressional magic words.  That’s a familiar principle, and persuasive in a number of contexts.  The effect of my contract depends on the written language and the intent of the contracting parties, not on the use of precise words to accomplish specific functions.

Should this be any different?  Well, we do have this sense that Congress should be allowed to use the tax designation as both a sword (justification for enacting authority) and a shield (insulation for political consequences of raising taxes).  But since when has Congress been estopped from legislating?  It’s also a bit surprising that Roberts went different ways on the Anti-Injunction Act and Taxing Power (see quote language above) . . . one felt that if the Court reached the merits of the case it would do so based on the finding that Obamacare was not a tax and therefore would be forced to decide the issue on Commerce Clause grounds alone.  But Roberts neatly worked around that dilemma by  holding that the individual mandate was indeed a tax, just not a tax to which Congress intended the Anti-Injunction Act would apply.

4.  Even though this is a loss for conservatives, there is something of a silver lining.  Between Roberts’ opinion and the Joint Dissent, there is a 5-member majority in support of unusually strong language on Commerce Clause federalism.  The language is so strong, in fact, that it likely forecloses any attempt at “compelled commerce” regulation in the near future.  This means that, if, down the line, conservatives are able to chip away at the rather deferential constitutional construction of a tax and/or expand on the Chief Justice’s anti-commandeering rationale, the field for Congressional action will have been limited.  It seems like Roberts’ opinion might also spawn some new Republican political strategy, like citing judicial authority to justify characterizing every regulation as a tax, or inserting punitive penalties into regulatory laws to sabotage them constitutionally . . . maybe I’m just reaching here, but no question congressional Republicans are committed and creative :)

5.  Roberts v. Scalia.  In case anyone doubted the sincerity of his commitment to judicial restraint (especially after Citizens United), Roberts’ opinion should allay that doubt (for now).  While Scalia’s commitment is, first and foremost, to originalist interpretation, Roberts’ jurisprudence is (in my opinion) guided to a significant extent by his beliefs about the role of the Court vis-a-vis the political branches and, to a lesser extent, preservation of its institutional capital.  I really think that this is the best way to look at his decision.  Which is the better approach?  I’ll leave that for you to decide . . . . ;)

6.  Another “switch in time”?  Although there is already a healthy ongoing debate over this, it does look (to me) as though Chief Justice Roberts changed his vote relatively late in the process.  It is hard for me to avoid the conclusion that the Joint Dissent (Scalia, Thomas, Kennedy, and Alito) was written by Scalia as a majority opinion.  It contains numerous references to “the dissent,” despite itself being a dissent.  It is also written, like a majority opinion, using the plural “we,” as opposed to the singular “I.”  Here’s an example:

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank.”  Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists.

Why were these references left in?  It could because of a last minute switch . . . but I doubt it.  Justice Roberts had to have time to write his opinion, and the Justices and clerks who write Supreme Court opinions are some of the very brightest people around — these edits could have been made no matter how late the change.  So, were they left in purposefully, as a signal to the world of a betrayal by the Chief Justice?  Well, I kind of doubt that as well . . . .  But whatever the explanation, it’s certainly interesting.

7.  Let’s get political!  Thus far in the battle over Obamacare, both sides have alternated being overly optimistic.  Prior to oral argument, quite a few Democrats were contemptuous of the merits of the legal challenge.  After oral argument, conservatives were prematurely dancing on Obamacare’s grave.  Liberals rejoicing today should take into account that it looks (if my sense if correct) like Obamacare was headed down to defeat and was saved only by a last minute defection (that was, in all likelihood, not wholly based on the merits of the case).  Furthermore, there is still a long way to go in the war over national health insurance in America, despite today’s decision.  And, while the Supreme Court will have more of a role to play, Roberts’ opinion, consistent with his commitment to circumscribing the judicial role, ensures that, going forward, this battle will be fought primarily politically from here on out.

Anyway, I’d love to hear your thoughts, whether on the opinion or my own commentary.  Type away — I can take it :)

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D.C. Circuit Upholds Obamacare

November 8, 2011 by Leave a Comment
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Watching Obamacare wend its way through the federal courts is great sport for court-watching types like myself.  It’s fascinating to watch some very, very intelligent and thoughtful federal judges wrestle with the significant constitutional questions posed by the individual mandate — questions that strike at the heart of some of America’s most basic constitutional principles:  separation of powers, federalism, and due process.

This morning, the United Staes Court of Appeals for the District of Columbia Circuit released an opinion upholding the constitutionality of Obamacare’s individual mandate.  The opinion was authored by Judge Silberman (appointed by President Reagan), joined by Judge Edwards (appointed by President Carter), and dissented from by Judge Kavanaugh (appointed by President George W. Bush).

Judge Silberman and Judge Edwards reached the merits of the plaintiffs’ challenge (i.e. actually decided their Commerce Clause argument), while Judge Kavanaugh would have dismissed the plaintiffs’ challenge for lack of subject matter jurisdiction pursuant to the Anti-Injunction Act.

For those of you keeping score on Obamacare, this puts the federal appellate decisions at 2-1-1 in favor of upholding Obamacare (6th and D.C. Circuits vote to uphold, 11th Circuit votes to strike down, and 4th Circuit punts on subject matter jurisdiction grounds).

Anti-Injunction Act

I won’t spend much time on the Anti-Injunction Act argument. Suffice it to say the argument there is essentially one of timing.  The Anti-Injunction Act prohibits any efforts to enjoin the collection of taxes prior to when the tax has gone into effect.  Essentially, Judge Kavanaugh was of the opinion that, under the Anti-Injunction Act, no challenge to Obamacare’s individual mandate could be brought before the individual mandate was enforced.  Judge Silberman (joined by Judge Edwards) rejected the Anti-Injunction Act argument, concluding that (1) the purpose of the Anti-Injunction Act was to prohibit suits designed to compromise the government’s ability to raise revenue, and (2) the purpose of the individual mandate was not to raise revenue to but to enable the functioning of the government’s national health care effort.  For a detailed discussion, read the opinions.

But it is significant to note that this is essentially a 3-0 rejection of the plaintiffs’ challenge to Obamacare (Kavanaugh, though not reaching the merits, would have dismissed their suit under the Anti-Injunction Act).

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The Merits (i.e., Commerce Clause, Federal Police Power, and Such) 

Each of the plaintiff groups challenging Obamacare has taken a bit of a different tack in challenging the individual mandate.  The plaintiffs in the D.C. Circuit case brought a facial, as opposed to an as-applied, challenge to the mandate.  A plaintiff bringing a facial challenge to Obamacare’s individual mandate is required to demonstrate that the mandate is unconstitutional in all, as opposed to only some, of its applications.  Here’s how the plaintiffs attempted to meet their heavy burden:

As is apparent, appellants have brought a facial challenge to the individual mandate. Appellants recognize that a facial challenge theoretically must establish “that no set of circumstances exists under which the [law] would be valid.”  United States v. Salerno, 481 U.S. 739, 745 (1987). But unlike the plaintiffs before the Sixth Circuit, appellants were careful to avoid conceding there were any valid applications of the law.  Cf. Thomas More, 651 F.3d at 556, 561-62, 564 (Sutton, J., concurring). Instead, appellants’ theory of the Commerce Clause would invalidate virtually all conceivable applications of the mandate.

Since, according to appellants, Congress only has the power to regulate individuals who are affirmatively acting in ways that affect a market, and for the duration of their activity, Congress also categorically lacks authority to compel individuals to maintain participation in a market into the future. No one currently active in the health insurance market will necessarily be active in 2014, when the mandate goes into effect, or remain active in that market in perpetuity, absent the mandate. Nor do appellants here concede that Congress could impose a mandate to require individuals to purchase insurance when they arrive at a hospital for treatment and maintain that insurance indefinitely.  The requirement to maintain coverage into the future, under their theory, dooms the mandate in its entirety.

Although the court admitted it was intrigued by the plaintiffs’ arguments, it ultimately rejected them, reasoning that the plaintiffs’ argument about activity/non-activity was just as novel as the individual mandate itself and had no basis in either in the text of the Constitution or past Supreme Court precedent:

The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.

We look first to the text of the Constitution. Article I, § 8, cl. 3, states: “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” (emphasis added). At the time the Constitution was fashioned, to “regulate” meant, as it does now, “[t]o adjust by rule or method,” as well as “[t]o direct.”  To “direct,” in turn, included “[t]o prescribe certain measure[s]; to mark out a certain course,” and “[t]o order; to command.”  In other words, to “regulate” can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term “commerce” limited to only existing commerce. There is therefore no textual support for appellants’ argument.

As to Wickard v. Filburn, specifically, Judge Silberman had this to say:

Whether any “particular person . . . is, or is not, also engaged in interstate commerce,” the Supreme Court expressly held, is a mere “fortuitous circumstance” that has no bearing on Congress’s power to regulate an injury to interstate commerce. Id.

Wickard is very much in that vein. In Wickard, it mattered not that Filburn’s annual wheat output was trivial in relation to national production. Nor did it matter that Filburn was being penalized for behavior that had only the most tenuous impact on interstate commerce in of itself, since Filburn never intended the wheat to be used for commercial purposes, never sold it, and used it only to sustain his home farm. It was also irrelevant that the wheat quota could compel even those farmers with no intention of selling any wheat, in any market, to enter the interstate market. All that mattered were the overall dynamics of the wheat market–in other words, generalizations about likely, future economic behavior. If farmers like Filburn all exceeded their quotas, the mechanics of the wheat market made it inevitable that the interstate market would be impacted–either by the likelihood that the high price of wheat Congress was trying to maintain would induce some unspecified number of farmers to sell wheat at market after all, or the probability that farmers who had enough wheat for their own use would stop buying wheat at market. Either way, these economic forecasts–and not any affirmative acts by people like Filburn–were enough to sustain the law. 317 U.S. at 117, 126-28.

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Often times, the most interesting parts of these Obamacare opinions come toward the end when the court provides some insight into how it views the case from a broader perspective.  Judge Silberman’s opinion is no exception.  Here are a few of the more interesting paragraphs:

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.

[I]t is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities. Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.

Finally, appellants’ position would not preserve state sovereignty.  A state that requires all its citizens to purchase health insurance is making them “active” in the interstate market; if the state thereby cedes control over its health care policy to the federal government, its experimentation is tantamount to a relinquishment of its own power.  Thomas More, 651 F.3d at 561-62 (Sutton, J., concurring); cf. Veazie v. Moor, 14 How. 568, 574 (1853).

That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.  The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-59 (1964).

Some Thoughts

Any thoughts on the opinion?  Here are a couple of my bullet points:

  • Federalism v. Due Process.  This is the second time we’re getting a suggestion from a federal appellate court that the federalism challenge to Obamacare is really not about federalism at all, but is about due process.  Could Obamacare revive Lochner-era economic due process challenges?  Stay tuned.
  • Which Way are we Leaping?  Judge Silberman does a good job with his contention that, at least when it comes to federalism and the Commerce Clause, the plaintiffs’ arguments RE the unconstitutionality of compelling people to enter commerce are just as unique as the idea of an individual mandate itself.  In other words, Silberman is saying that, while the plaintiffs arguments may have a familiar ring to them when it comes to Due Process, when it comes to federalism the Obamacare plaintiffs are asking courts to make just as much of a leap as Congress is with the individual mandate.  This adds a new dimension to the arguments.
  • Lots of Ammo for the SCOTUS.  The Supreme Court is going to have a lot to draw on by the time this one gets before them.  It will be interesting to watch — not only which way they decide to rule, but how they decide to go about it.
  • Anti-Injunction Act Gaining Momentum?  Will we see a 5-4 decision to uphold Obamacare, with the 5 Justices voting to uphold splitting on whether to uphold on the merits or to uphold based on the courts’ lack of subject matter jurisdiction over the plaintiffs challenge?
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Is the MCAP Act the Republican Version of Obamacare (Federalist-ly Speaking)?

October 29, 2011 by 1 Comment
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Hat tip to Daniel Burton at Publius Online for this interesting story about potential federalism hypocrisy from the right side of the U.S. Senate.

In preparing its response to President Obama’s famous “pass this” jobs bill, Senate Republicans — specifically Senators Inhofe, Vitter, Burr, Cornyn, and Alexander — are resurrecting a prior house bill (previously known as the Help Efficient Access Timely Healthcare, or “HEALTH”) as the Medical Care Access Protection Act of 2011 (“MCAP”).

MCAP is nationwide tort reform, which would create a federal law of medical negligence that would not only govern medical tort suits in federal courts, but would govern medical tort suits in state courts and medical tort claims in private non-judicial proceedings, such as mediation and arbitration.

What MCAP Does

Specifically, MCAP would:

  • Impose a nationwide statute of limitations of 3 years on any tort claim based on the the provision of “healthcare goods or services” by any “healthcare provider” or “healthcare institution” (collectively encompassing everyone from nurses to hospitals).
  • Impose, for the above-referenced class of cases, a cap on noneconomic damages (defined as noncompensatory damages, i.e., punitive damages) of $250,000 per claim per defendant (capped at $500,000 total).
  • Impose, for the above-referenced class of cases, a mandatory minimum sanction for state (or federal) Rule 11 violations (Rule 11 is the rule that, as a practical matter, prohibits frivolous lawsuits).   Ordinarily, the decision to sanction, and severity of the sanction, is left to the discretion of the trial court.
  • Require, in the above-referenced class of cases, the assessment of pure comparative fault and not allow damages to be assessed against any party for an amount inconsistent with its proportion of fault (i.e., no absolute or modified [51%] contributory negligence bar).
  • Allow a court to alter or veto any contingent fee arrangement the court deems unfair, and to redirect monies that would, under a contingent fee arrangement, go to attorneys, to a plaintiff if the court concludes that doing so would be in the “interests of justice.”

MCAP does qualify its impact on state law somewhat.  For example, MCAP allows for states to set their own maximum cap for noneconomic damages — whether that amount is greater or lesser than the $250,000/$500,000 cap that MCAP would otherwise imposed.  In other words, MCAP only sets a limit on noneconomic damages where state law has not already set a limit.  Furthermore, MCAP does not prohibit states from enacting laws providing greater protections to healthcare providers.

Despite those qualifications, MCAP, if it were passed, would be a major — indeed, almost unprecedented (?) — legislative encroachment on the autonomy of state courts, even though it would not alter much of the substantive law governing medical tort claims.  The current consensus seems that the bill has zero chance of being passed in its current form, but let’s not allow that to prevent us from dissecting it. :)

Constitutional Basis

I know the question you’re dying to ask:  Is this kind of encroachment constitutional?

Here’s the purported constitutional basis for MCAP:

Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.

Sound familiar?  It should.  Read this from Patient Protection and Affordable Care Act (a/k/a Obamacare):

(1) IN GENERAL — The individual responsibility requirement provided for in this section (in this section referred to as “the requirement”) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).

(2) EFFECTS OF THE NATIONAL ECONOMIC AND INTERSTATE COMMERCE — The effects described in this paragraph are the following:

(A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.

(B) Health insurance and health care services are a significant part of the national economy. . . .

(C) The requirement, together with the other provisions of this Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services. . . .
. . .

(E) Half of all personal bankruptcies are caused in part by medical expenses. . . . .

(F) Under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a significant role in regulating health insurance which is in interstate commerce.

A Federalism of Convenience?

Both MCAP and Obamacare involve health care.  The Democrats justified Obamacare by reference to the so-called “substantial effects” doctrine of the Commerce Clause, and the Republicans do the same for MCAP.  Is this just pure hypocrisy from the Republicans, or is there a legitimate basis for distinguishing (at least as a matter of constitutional enacting authority) Obamacare and MCAP?

As a matter of constitutional law, I don’t think there is a basis for distinction.  Both bills claim on the Commerce Clause as enacting authority, involve the same industry, and rely on the Wickard v. Filburn substantial effects line of cases.

So, yes, there’s clearly some hypocrisy here.  But I don’t think that Republican support for MCAP is pure hypocrisy (please note the emphasis), either, and let me tell you why.  I suspect that if you were to press Republicans on the differences between the two bills they would say something like, “MCAP doesn’t require you to do (or buy) anything, while Obamacare does.”

An admission like this helps us drill down to what the furor over Obamacare’s insurance mandate is really about.  In the judicial challenges to Obamacare, Republicans are trying to use federalism to do the constitutional heavy lifting that, in a prior time, would have been done by the Due Process Clauses of the Fifth and Fourteenth Amendments.  As much as Republicans claim the judicial challenges to Obamacare are about ensuring that enforceable limits to Congress’ Commerce Clause authority remain (and make no mistake about it, they can make a good case for their position), what these challenges are really about is constitutionally enforcing a nationwide sense — a very smart federal judge referred to it as an intuition — that government should not be telling us what to buy and what not to buy when it comes to matters of our personal health.

In other words, if it wasn’t clear already, MCAP just makes it more clear that Republicans’ problem with Obamacare isn’t that it upsets the federal division of powers, it’s that it runs afoul of their idea of basic economic liberty.  I referenced this briefly in a prior post dealing with Republican Presidential candidate Michelle Bachmann’s stance on state health insurance mandates, and received some interesting comments, especially from Ben Lusty, that I would recommend to readers interested in the relationship between economic liberty and health decisions.

So, do I think MCAP is just a matter of Republican hypocrisy on federalism?  Well, to a point, yes, and Republicans should be called on it.  Cries of hypocrisy are the price of embracing federalism primarily as a convenient stand-in for substantive policy provisions.  But I also think that for many Republicans (whether these lawmakers are among them, I’m not sure) it’s not conscious hypocrisy.  To many of today’s Republican federalist-types, what they really mean by federalism is substantive — as opposed to subject-based — limits on the legislative power of the national government.  And when you look at MCAP from that perspective, Obamacare is quite easily distinguishable, and I suppose MCAP isn’t hypocritical at all.

 

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Judge Conner of the Third Circuit District Court Weighs in on Obamacare, in a Judicially Modest Way

September 13, 2011 by 1 Comment
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Another Obamacare decision was released today, this one at the district court level in the Third Circuit:  Goudy-Bachman v. U.S. Dept. Health & Human Servs.  This latest decision, striking down the individual mandate as an unconstitutional exercise of Congress’ Commerce Clause authority, was authored by Judge Christopher C. Conner, a George W. Bush appointee,  and is, in my view, high-quality legal analysis that improves on the initial district court decisions (and some of the appellate level opinions) addressing the constitutionality of Obamacare.  This is not surprising, as Judge Conner had all the previous decisions to draw from and consider when drafting his opinion.

[adsenseyu2] As you might expect, much of Judge Conner’s analysis is duplicated in prior opinions and need not be rehashed here.  But there are a couple of interesting aspects to his opinion that I wanted to highlight.  Feel free to post your thoughts as comments using the form below.

1.  Careful Emphasis on Judicial Role

Throughout his opinion, Judge Conner was careful to note that it was his job, as the spokesman for an inferior federal court, to assess how far the United States Supreme Court had taken the Commerce Clause and take it no further than was clearly justified.  Somewhat paradoxically, he began by noting that past Supreme Court precedent was not particularly helpful:

Given the unique factual circumstances of this case, both the Bachmans and the government can effectively distinguish Commerce Clause jurisprudence that appears unsupportive of their respective positions. Therefore, the Supreme Court decisions in Wickard, Lopez, Morrison, and Raich provide only limited guidance for the court’s analysis. Quite simply, this is a case of first impression.

Having determined that Obamacare presented unique legal questions not squarely addressed by prior Supreme Court precedent, Judge Conner turned to the decisions of the various Courts of Appeals that have split on the constitutionality of Obamacare’s individual mandate and to his own analysis of the relevant constitutional questions.

Ultimately, Judge Conner determined that nothing in Supreme Court precedent or the text of the relevant constitutional provision itself went so far as to mandate (pun intended) upholding Obamacare’s individual mandate as a constitutional exercise of Congress’ Commerce Clause authority.  Essentially, he said:  ”Until the Supreme Court says this is constitutional, I’m not going to step out on a ledge and say so.”  Here are some quotes from his opinion:

As set forth below, this Court’s ratio decidendi is straightforward: Heretofore, the Supreme Court has never sanctioned, under the auspices of the Commerce Clause, the enactment of a broad scale economic mandate in anticipation of a probable but uncertain future transaction. The Supreme Court’s Commerce Clause jurisprudence does not lend itself to such an expansive interpretation. Until the Supreme Court interprets the commerce power to permit these anticipatory mandates, I am bound by stare decisis to conclude that Section 5000A is unconstitutional.

Thus, both decisions spotlight the individual mandate’s voyage into unchartered territory of constitutional law. Whether the extension of power is logical or appropriate, the fact of the matter is that Commerce Clause jurisprudence is bereft of authority clearly permitting the extension.

This court’s interpretation of existing precedent, including Lopez and Morrison, leads the court to the conclusion that the Supreme Court would not construe the Commerce power to have such expansive reach. The extension of the Commerce Clause in the manner the government suggests is unsupported by precedent and therefore beyond the scope of this court’s proper function to grant.  An expansive interpretation of the commerce power that will permit Congress to equate the individual financial decision to forego health insurance with commercial activity having a substantial effect on interstate commerce, must come from the Supreme Court.

It would be uncharitable (and inaccurate) to say that Judge Connor simply punted and said, “I’ll leave it for the Supreme Court to address the issue.”  He ultimately reached his own conclusions about how he thought the Supreme Court was likely to rule given his reading of precedent.  But there’s no doubt he crafted his opinion very carefully and that, in addition to how he may have felt as to the merits of the challenge himself, he felt uncomfortable as a lower-tier federal judge (though obviously a very able one) in unilaterally extending the commerce clause based on his own reading of the text and marginally-applicable precedent.  This is an effort in judicial modesty that does the federal judiciary proud, in my opinion!  And lawyers should pay attention — this strikes me as something that can be a very persuasive approach to argument that can win you a lot of cases.

2.  Response to Anti-Obamacare Hyperbole

The second aspect of Judge Conner’s opinion that’s quite notable is his approach to what he obviously considered to be hyperbole in the plaintiffs’ arguments (though he more charitably identified it as overstatement accompanying “zealous advocacy” in a footnote).  Judge Conner himself rejected the contention, which we hear so often, that upholding Obamacare would necessarily lead to either (1) laws mandating broccoli consumption, or (2) acceptance of the constitutionality of laws mandating broccoli consumption.

Judge Conner specifically noted that he himself had no doubt that the market for healthcare was unique and that it was entirely possible to craft a constitutional standard that could distinguish between a health insurance mandate and a broccoli consumption mandate — he just refused to be the one to do it:

It is clear to the court that the health care services market is unique. In other markets, including other insurance markets, when an individual suffers a loss or is in need of a commodity or service (such as food, transportation, or housing) there is no obligation that society compensate for that loss or provide the commodity or service without advance payment. In the health care services market, however, against the backdrop of state and federal laws such as Emergency Medical Treatment and Active Labor Act, individuals can and do receive medical treatment regardless of their ability to pay.

Uniqueness as a limiting principle presents the court with a wholly novel question in Commerce Clause jurisprudence. The text of the Constitution itself does not admit such a limiting principle. Moreover, the court has been unable to find any precedent, and the parties have been unable to direct the court to any precedent, that permits the expansion of the Commerce Clause authority to regulate individuals prior to their engagement in commercial activity on the basis of the unique nature of the market being regulated. This court is bound by the principles of stare decisis and must reasonably interpret, not create, law.  This court’s interpretation of existing precedent, including Lopez and Morrison, leads the court to the conclusion that the Supreme Court would not construe the Commerce power to have such expansive reach. The extension of the Commerce Clause in the manner the government suggests is unsupported by precedent and therefore beyond the scope of this court’s proper function to grant.  An expansive interpretation of the commerce power that will permit Congress to equate the individual financial decision to forego health insurance with commercial activity having a substantial effect on interstate commerce, must come from the Supreme Court.

The Framers carefully constructed our national government with a system of checks and balances. This court’s role in that system is to assess the matters presented before it on the basis of the constitutional text and Supreme Court guidance, consonant with the principles of stare decisis. The minimum coverage provision of the Patient Protection and Affordable Care Act exceeds Congress’s authority under the Commerce Clause of the United States Constitution. The court does not reach this conclusion because the alternative would be disastrous to this nation’s future, such as the Bachman’s prediction of America evolving into a socialist state. These suggestions of cataclysmic results stemming from Article III authorization of an individual mandate are both unproductive and unpersuasive.  Should the Supreme Court determine that the Commerce Clause extends to anticipatory mandates, or, that the health care market is unique for purposes of Commerce Clause analysis, the Supreme Court will delineate clear limits to that power. Until that occurs, the minimum coverage provision of the Patent Protection and Affordable Care Act cannot withstand constitutional scrutiny.

Some Thoughts in Conclusion

Ultimately, I suspect Judge Conner’s decision will polarize people a bit, even though it shouldn’t.  There will be some that will view him as equivocating, trying to avoid meeting the issue head on by saying, “The mandate’s not all evil, but I don’t have authority to uphold it at this point.”  Others, like myself, will really like his approach, even if they don’t necessarily agree with all his analysis.

This is a very carefully considered decision that deserves a close read.  Once you’ve reviewed it, I’d love to hear your thoughts.

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Sixth Circuit Court of Appeals Upholds Obamacare: Sometimes an Intuition is Just an Intuition

June 30, 2011 by 3 Comments

Legal circles are buzzing with the news that a panel the Sixth Circuit Court of Appeals today upheld, 2-1, the constitutionality of Obamacare as a lawful exercise of Congress’ power to regulate interstate commerce.  The Sixth Circuit Court of Appeals’ ruling affirmed a similar ruling by the district court.

The lead opinion, written by Judge Martin, determined that Obamacare was a constitutional exercise of Congress’ legislative power pursuant to two separate Constitutional authorizations: (1) the commerce power, and (2) the taxing power.  The lone vote for reversal, Judge Graham — a district court judge sitting on the appellate panel — obviously determined that Obamacare exceeded Congress’ authority under both rationales.  The swing vote (and, consequently, the most significant opinion) was Judge Sutton, who determined that Obamacare was unconstitutional as an exercise of the Congress’ taxing power, but was a constitutional exercise of Congress’ power to regulate interstate commerce.

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