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?