The Plot Sickens – The Heart of the ACA Litigation Moves to the Supreme Court
by Beverly Mann
The Plot Sickens – The Heart of the ACA Litigation Moves to the Supreme Court.
Maybe. Last week’s big political news concerning the PPACA (a.k.a. “Obamacare”) litigation was the administration’s decision to forego the option of asking the full membership of the Atlanta-based Eleventh Circuit Court of Appeals, the appellate for several southeastern states, to hear and reverse the mid-August opinion by two members of a three-judge panel of that court striking down the individual-mandate provision of the ACA as beyond the constitutionally permissible reach of the Commerce Clause, the “enumerated power” in the Constitution under which Congress enacted the statute.
This surprised some political pundits, but because anyone thought a majority of the members of that most conservative of regional federal appellate courts would disagree with the ruling—except possibly the part holding that the mandate provision was “severable” from the remainder of the Act and that therefore the Act remained intact except for the mandate provision. Instead, they thought that the Obama administration wanted (or, more accurate, should want) to delay a Supreme Court ruling on the constitutionality of the statute, especially the mandate provision, until after the election next fall. And if the full appellate court agreed to dissolve the panel’s opinion and hear the case—a long shot, in my opinion—this would do the trick.
At least, that is, if the Supreme Court denied or postponed consideration of the petition for Supreme Court review of a majority opinion of a three-judge panel of the Cincinnati-based Sixth Circuit Court of Appeals, the appeals court for Michigan, Ohio, Kentucky and Tennesee, in late June, written by conservative Bush appointee Jeffrey Sutton, upholding the constitutionality of the mandate provision. Sutton’s opinion meticulously and eloquently deconstructed the plaintiffs’ arguments—which are the same as those by the individual human plaintiffs in all the other cases challenging the constitutionality of the individual mandate. He famously explained: First, contrary to assertions, the real basis for the plaintiffs’ claim is not that Congress lacks the authority under the Commerce Clause to mandate that everyone who is financial able purchase healthcare insurance in order to help defray the inevitable costs of their own emergency medical care when need arises and care is sought, but rather that this mandate unconstitutionally infringes upon individual liberty to remain self-insured. And, second, the structure of the statutory mandate—that the individual obtain the insurance from a private carrier—no more infringes upon that individual liberty than would the imposition of a tax similar to the Medicare and Social Security tax laws, paid to the government for that purpose. If the claim is a constitutional right, a constitutional liberty interest, in remaining self-insured—and that is the claim—then the infringement on individual liberty comes not from the mandated purchase of the insurance from a private party but instead from the removal of the option to remain self-insured.
And any infringement on individual liberty doesn’t morph into an unconstitutional infringement on liberty simply because the enumerated power under which Congress enacted the statute was the power to regulate interstate commerce (the Commerce Clause) rather than the power to tax in order to provide for the general welfare (the Tax Clause). And constitutional authority conferred through the Commerce Clause doesn’t become un-conferred by the Commerce Clause just because the statute limits individual liberty. Conflating the two separate grounds, neither of which can stand on its own, doesn’t transform a constitutional statute into an unconstitutional one. No alchemy here.
Sutton’s analysis exposes the constitutional challenges to the individual mandate for what they are: a series of ideological clichés masquerading as legal argument. As I wrote in AB shortly after the Sutton opinion was released, his analysis is so fine, so precise, that ultimately the Supreme Court’s opinion will echo it. So I was not among those who were surprised that the administration is pushing for a Supreme Court ruling on the constitutionality or the statute before the 2012 election. But all the judges thus far who have voted to invalidate the individual-mandate provision as unconstitutional are, in my opinion, intellectual lightweights, and so I’d wondered whether the Sutton analysis itself could be persuasively deconstructed by a judge or justice who is not.
The answer appears to be no. Last week, a panel of yet federal appellate court, this one the one for Washington, D.C., heard arguments in yet another case challenging the constitutionality of the mandate as beyond Congress’s Commerce-regulation authority because it infringes upon the liberty of individuals to remain self-insured, it requires the purchase of a “product” from a private party, and, well, um, the scope of the statute is really sweeping. I mean, what’s next, asked one of the two stalwart rightwing-intellectual-heavyweight members of the panel? Congress mandating the purchase of GM cars by the wealthy in order to prevent the collapse of that company during the next economic downturn, upon pain of payment of a penalty for failure to do so? (I hope so. Then, when David Koch has a heart attack in his Maserati and the ambulance attendants verify through the Secretary of State’s offices in his various home states that there is no GM car registered in his name, the attendants dump his gasping-for-breath body in the road, where he’s run over by a Cadillac SUV.)
A sigh of relief was in order—although I had to wait until I stopped smiling like a Cheshire cat. That judge, Brett Kavanaugh (a former law clerk to Justice Kennedy, circa 1993), reportedly commented earlier to the plaintiffs’ lawyer that maybe the courts shouldn’t interfere with what could be the beginning of the mass privatization of the social safety net. More likely, I think, it will prompt, finally, a single-payer healthcare-insurance system—Medicare for all—in order to cut out the spiraling costs of a private, multi-carrier, for-profit system whose premiums reflect, in part the investment losses of those private companies. But don’t tell Judge Kavanaugh until after that appeal is over.
*****
Much as the administration and its many litigation opponents—which include 26 states, which are challenging another part of the statute—want a quick Supreme Court adjudication of the constitutionality of the statute, there is some possibility that the Supreme Court will hold that it lacks “subject-matter jurisdiction”—i.e., legal authority—to consider the challenges at least to the mandate provision until sometime in 2015, when the mandate provision becomes effective and the IRS collects the penalty. This is pretty esoteric procedural stuff, and it was the subject of an earlier AB post of mine last spring in which I said I thought that outcome in the Supreme Court was unlikely. But in early September a 2-1 majority of the Richmond, VA-based Fourth Circuit Court of Appeals, the appellate court for the Carolinas, West Virginia and a couple of mid-Atlantic states, along with Virginia, last month ruled exactly that. The issue concerns a federal “jurisdictional” statute called the Anti-Injunction Act (the AIA), and the Supreme Court’s interpretation of that statute in two opinions issued on the same day, concerning the current statute’s predecessor, in 1922.
Sutton and his two colleagues rejected the argument. And the dissenter in the Fourth Circuit case, Andre Davis, dismantled his colleagues’ analysis as absurd. I agree Davis. But as law prof. Brad Joondeph, who writes a blog devoted entirely to the ACA litigation, and who is featured prominently in AB posts of mine from last June, wrote recently, the language of the AIA, and the Supreme Court’s earlier opinions interpreting it, may not matter here.
What might? If a majority of justices, for various reasons, want to punt on the issue of the constitutionality of the ACA until after—comfortably after—next year’s elections. I don’t think they will. But I’m probably wrong.
Great post!
Thank You.
Beverly,
Not withstanding your wish that someone you disagree with politically die on the road, typical leftist stuff, and that GM sold roughly 40% of its cars to the US Government you miss the entire point of Obama’s move.
The idea is to have the case settled in teh Supreme Court (either way) prior to the election. According to the timelines I’ve seen the ruling would come out in July 2012. This would allow Obama to either run on the fact that his signature issue was upheld by the courts (I’m right) or run saying he needs to be re-elected to prevent the evil R type President (you know the one who wants to reform SS – oops that’s Obama but I digress) from putting more Robert’s types on the court. Either way if it settled Obama can use it to his advantage.
On the other hand if the case goes to after the election and Obama loses, the new R President could elect to not defend Obamacare becuase the new President didn’t beleive it was constitutional. Or put some new fresh-out-of 5th Tier law school grad to defend it. Thus assuring the Court calls it unconstitutional. Obviously YMMV.
But this was a political decision from the Obama team.
Islam will change
More importantly:
PPACA will fail because it is too complex and too convoluted to be fully implemented.
PPACA is being hampered by the Obama administration’s inability to write regulations that can actually work (lawyers do love it though).
PPACA will succeed in another sense because it is driving a frenzy of innovation (good), consolidation (mixed) and realignment of providers (mixed).
I disagree with buff, and with Rusty, and I’m with Ilsm in regards to this being an exellent post.
PPACA is a harbinger of the type of Capitalism that J.K. Galbraith saw coming many decades ago… I ‘think’ he called it “Institutional Capitalism”?
The MLR provision is a perfect example of how Capitalism and Socialism are converging out of necessity. And I doubt if the Dems have any chance of holding on unless they convince the voting public that the ‘road to serfdom’ is a better choice than a few lost decades with 25% of the population dedicated almost exclusively to the trevails of conspicuous consumption. I doubt, in other words, that Obama has any chance of winning if he must ” run saying he needs to be re-elected to prevent the evil R type President”. Obama needs to show some solid instance of leadership or he is doomed, and the PPACA is his flagship, if it seems to be sinking… Obama will lose a critical battle for the Left.
Conversely, if the flagship could be better understood by the voters… that it is only a choice between tightly regulated Capitalism, or, Socialism, or, a type of libertarianism that is currently active in Somalia… then… things could move in a positive direction as the flagship slowly turns to the left (port side?).
I suspect that our wealth distribution situation will play a large role as we vote in 2012, but… whether Obama has the courage to choose sides… that, is the question??? JFK and RFK made choices of this type.
ray
ray,
Its called big government taking over 20% of teh US economy….more growth in the Leviathan.
Islam will change
buff,
I may not understand your comment, but, it seems a little off. Obamacare is not “big government taking over” anything. It is instead a compromise that applies downward pressure on spending while allowing the applicable workers, doctors, nurses, insurance folks and etc., to remain part of the private sector.
What we are seeing expressed through wealth distribution factors is where Capitalism always goes when the pressure on the bridle is eased. Would you prefer that we simply let the horse run free? Do you think that a plastic surgeon makes a more valuable contribution than a roofer; if we were to be forced to eliminate one vocation or the other… which one would we choose, or, will the roofer be made obsolete? And… what happens when machines make labor worthless, do the stockholders simply live behind walls or perhaps send the non-stockholders to some distant planet?
“Big Government” is the only solution because at some point the soldiers will realize that they have been fighting on the wrong side.
ray,
If you really beleive that about ObamaCare, you’ve drunk the Koolaid and there’s no helping you.
Big Government leads to Tyranny and the loss of individual freedom. And, of course, is not sustainable once other-peoples-money runs out.
A plastic surgeon actually is more valauble than the roofer. I can train a new roofer in a day from almost anyone – we do it down here in Texas all the time with the illegals. Takes 10 years to replace the plastic surgeon. So yes a plastic surgeon makes many, many times more of a contribution than a roofer.
But Communism has failed everywhere its been tried and is responsible for the top two mass murdereers in the entirity of human history. Your way leads to tyranny and death. Not buying.
Islam will change
buff,
At first I was again confused by your comment. But then I assumed that you could not be so uninformed as to think that Hitler was a Commie (Facist/Christian).
But then it occured to me that your view of someone’s contribution is based on how exploitable that someone happens to be at a given point in time. So my confusion began to clear… you are simple, like so many, the majority in fact. And it also follows that you would stupidly see Obamacare as “Communism” when it is in fact an effort to revive Capitalism as Capitalism is failing. But then too if you assume that only Communism can be totalitarian… well, then I suppose Texas is a good place for you (of course not everyone in Texas is brainwashed but the percentage is very high).
That sentence in the next-to-last paragraph should say, “I agree with Davis.”
Yup. Lotsa tyranny in Australia from that big-government healthcare system there. In Norway, Sweden, Finland, France, Holland, Germany, Italy, Spain, Israel, Japan, Canada and England, too.
Why is it that the political right confuses—or pretends to confuse—ideology with fact? They’re incessantly stating ideological cliché as fact, on issue after issue.
And what is with that canard, repeated again and again by the right, that because healthcare comprises some large portion of economic activity, the government should stay out of it? As if the purpose of healthcare is—like, say, manufacturing—to produce a product or service for its own sake rather than to, y’know, provide medical care.
And like it’s really good for a country, anyway, to have so much of its gdp in healthcare, rather than in, say, manufacturing, like that commie nation Germany, whose unemployment rate, though higher than in normal international economic times, we can only dream of. Tyranny? We should try some of it.
No, actually, buff, I don’t want Koch to die on the road. I just want him to have to show proof of purchase of a GM vehicle before he’s taken to the hospital. Y’know, like the plaintiffs in the ACA litigation, who base their constitutional challenge partly on their promise that they won’t show up at an emergency room if they choose to remain uninsured, and on their insistence that no one should be admitted to an emergency room without proof of insurance or ability to pay out-of-pocket.
STR:
Oh please.
What BCBS policy is simple? I ahve said this before, “No Private Healthcare Insurance Policy s written on One Page.” In turn, you get a book of multiple pages full of exceptions. It is no different than the gov. The difference in the ACA and private healthcare is a mandate to lower the costs and change the healthcare model of service for fees.
Buff:
Primary Care is more important than a plastic surgeon because they hav a greater impact on more of the population than a plastic surgeon . . . a specialist.
Yesterday in West Virginia, the conservative Democratic acting governor narrowly fended off a late surge from the oil-magnate Republican candidate to win the special election for governor. The surge came from an inundation of tv advertising, paid for by the GOP Governors Assn., on—you guessed it—“Obamacare.” West Virginians, by large margins, hate Obamacare. Liberty, you know.
But it turns out, according to the article I read, that what saved the Dem was, um, Medicare. Even though governors have no say in anything concerning Medicare.
In other words, they didn’t want to send a signal that the Republican Party’s attempt tp undermine Medicare was okay with them.
And in other words, the hysteria about Obamacare has little to do with the actual policy. It’s simply reflexive, the result of years of propaganda, unconscionably and unfathomably unrebutted by Obamacare’s namesake, Obama.
And on that namesake point: Why is it called Obamacare, when Obama and his administration had virtually no role in developing the policy proposals?
The bigger question is why nobody figured out (except for ‘ol Robert Ball back in the day) that the secret to puhing through universal healthcare is by making Medicare univeral— its polled 20 points higher than any other solution at least since the early 90s
The insurance lobby has managed to fend off any serious discussion of it. My hope is that Elizabeth Warren will run for president in 2016. If she runs, she’ll win the nomination. And although her strong suit is financial-industry regulation, I’d bet she’d begin a serious discussion about it during the campaign. I think it would be hugely popular by then and that it would help her win.