Monday, November 14, 2011

Reading (and Spinning?) the Tea Leaves of the Health Care Act Cert Grant

By Mike Dorf

The grant of a whopping 5.5 hours of oral argument on the various issues presented by the challenges to the Patient Protection and Affordable Care Act.  As broken down by Lyle Denniston on SCOTUSblog, that's:

1) two hours on the main event -- the constitutionality of the individual mandate;

2) an hour on whether the tax Anti-Injunction Act forbids a pre-enforcement challenge;

3) an hour and a half on severability;


4) an hour on the expansion of Medicaid.

The really scary piece there is number 3.  Why would the Court want to hear an hour and a half on severability if most of the Justices thought that the law was valid?  Severability only arises if the Court first concludes that part of the law is invalid, and then must determine where, if at all, to cut off the rest of the law.  So the fact that the Court wants more than a standard full oral argument on severability could be a signal that at least some of the Justices think they will need to reach the severability question.

Whether we read the grant on severability in that way depends in large part on the process used for adding time and limiting cert questions.  The order list shows no dissent on this point but it would be highly unusual for any Justice to dissent publicly even if he or she thought that it was not necessary to hear so much about severability.  Thus, it's possible that the separate grant on severability responds to just one or two Justices who take a special interest in the question.  At the very least, we know that Justice Thomas -- given his narrow view of federal power -- will probably find it necessary to consider severability.  So it's possible that this is not a signal about anything.

My own possibly polyannish view is that the effect of 5.5 hours of combined oral argument will be to make it more likely that the Court upholds the Act.  Why?  Principally because Justice Kennedy's prior votes and statements -- especially his concurrence in the Lopez case -- indicate that he thinks judicial intervention on federalism grounds should mostly be reserved for circumstances in which Congress has acted largely symbolically.  Striking down the Gun Free School Zones Act in Lopez and the civil remedy provision of the Violence Against Women Act in the Morrison case were freebies.  Those laws more or less duplicated state laws.  By contrast, Justice Kennedy voted to uphold the laws at issue in the Raich and Comstock cases, where a vote to invalidate might have made a substantial difference on the ground.  Five and a half hours of oral argument in the PPACA cases will underscore for Justice Kennedy that the stakes here are anything but symbolic.  That in turn makes it less likely that he will vote to invalidate the law.  And if he votes to uphold, that will be at least 5 votes for that outcome.


Joe said...

That is a lot of time.

The hour for #2 can be because neither side wants them to punt the case while various sides might have different views on #3.

I think your hope is sound -- the time will underline the importance of the ruling as a whole. The USSC has not used enumerated powers grounds to strike down a piece of legislation this major in recent memory to my knowledge. All that time will underline the importance of the law, including various nice things not connected to the mandate.

#4 is a bit curious. Don't see any real chance the 11th Cir. will be overturned here toward a MORE conservative result. It's like taking the Privileges / Immunities issue in the gun case when only one justice really cared.

Paul Scott said...

It's too bad, then, that he did not consider the stakes higher in Bush v. Gore.

I suspect the paltry changes to Health Care will die at SCOTUS.

Maybe that is for the best, though, since the changes pretty much just made it more likely that the bad system we have would live longer before collapsing.

Joe said...

Via ACS Blog, Katheleen Sullivan wrote a brief to list some of the "paltry" changes:

The ACA is a comprehensive, multi-faceted legislative scheme aimed at achieving near-universal and affordable health care coverage for every American citizen. It expands Medicaid coverage, ACA § 2001; requires large employers to provide health care coverage for their workers, ACA §§ 1511, 1513; creates new health benefit exchanges for in-dividuals and small businesses, ACA §§ 1311, 1312; provides tax credits to allow a broad range of indi-viduals and families to purchase health insurance, ACA §§ 1401-1421; eliminates Medicare copayments for a wide variety of preventive services (e.g., screen-ing for cancer), ACA § 4104; and strengthens the Medicare Part D prescription drug program by filling in the “donut hole,” ACA § 2501.

Add the rights of parents to have their mid-20s aged children to be on their health insurance.

And, if the changes at issue are so bad constitutionally, how could a "better" and more federally intrusive system, such as a universal health care system, be constitutional?

Change over the years came in stages, as seen by the 1960s adding on expansion of the safety net put in the 1930s. It isn't going to happen all at once.

egarber said...

Having gone back to look at Scalia's Raich concurrence, I can't figure out how he can throw out mandates.

He seems very clear in his elaboration on the commerce power -- particularly that it works in conjunction with the necessary and proper clause to envelop behavior that's not necessarily "economic" in itself. Further, he says the authority covers behavior that doesn't even "substantially affect interstate commerce," provided the regulation is "necessary" to carry out the core provisions. Maybe I'm wrong, but that's a mighty broad reading, especially from a conservative.

In this case, the decision not to purchase insurance is an economic one (within the "instrumentalities" of commerce), because one is choosing to have somebody else pay for his emergency care. So it seems to me it fits within plank 1 and 2 of commerce clause precedent (behavior involving commerce directly) -- i.e., we really don't even need to explore Scalia's wider framework.

I suppose the only way out is if he buys the passive vs active distinction that's been invented as part of the challenge.

Dan said...


If you look at Scalia's Raich concurrence, he uses the term "activity" (or "activities") an astounding forty-two times in just a few pages.

I think that is more likely serendipitous than it was strategic, but the point is he left a wide-open door to walk through.

egarber said...

Yep Dan, I noticed that too.

Still, he seems focused on the notion that the authority extends to whatever is "necessary" to make a core -- and acceptable -- regulatory scheme work.

And he writes this, in particular:

As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.”

I know it's just one line, but this leads me to think the word "activity" was simply a broad placeholder throughout his opinion, not an intended limiter. Of course, to your point, there's nothing stopping him from retroactively breathing a limiting characteristic into it.

To me, it comes down to this question (on the commerce clause):

Do the precedents extend to both passive and active economic behavior?

Dan said...

Did the precedents' facts deal with economic inactivity?

I think you're entirely right on the law, and that the principles Scalia has stood behind in the past should dictate broad discretion to Congress to choose the means to effectuate constitutional ends. That said, I think that he will probably take the opportunity to retreat from the presumption that the federal government can do literally anything in furtherance of a constitutional goal. I think PPACA is constitutional, but even I wouldn't go quite that far.

I predict he will be able to write an opinion that dismisses all the previous broad language on the grounds that "hey, that was before we were presented with this new unprecedented expansion of federal power to punishing inactivity." He will be called out on the conceptual inconsistency of that, but because he has the vocabulary-loophole of "activity vs. inactivity" at unusually close reach in his Raich concurrence, it will be harder to skewer him with his own precedents than some have suggested.

egarber said...

Well said Dan.

I think one telling part of the conversation will be whether the justices can offer a satisfactory answer to this question:

Is there a difference between these mandates and say, a requirement that all people must purchase 12 apples a year?

If the answer is no, that open-ended reality might bother even Kennedy (forget Scalia).

But to me, the answer is yes. In the mandate context, we're all market players by default, given the unique cost-shifting dynamic. In the apple example, the government would be requiring people to opt in.

In other words, I think I'm ok on some level with the activity / non activity distinction -- to the extent we define non-activity as that which resides firmly outside a market. By the nature of things, insurance inactivity amounts to an economic decision that directly impacts all market players; avoiding apples is simple consumer choice.

As an admittedly stupid analogy, it's sort of like the difference between smoking in a crowded room, vs. doing it outside in a field.

Dan said...

That's pretty good. Or, if we were trying to write an opinion for Kennedy or Roberts, we could say:

1. When Congress chooses the means to accomplish a constitutional end, we review that choice under a deferential "reasonability" standard.

2. Punishing inactivity, if it meant punishing people who truly stood utterly outside the stream of commerce, would be a novel and perhaps suspect method of regulation, making it a candidate for unreasonability.

3. Today we decide that, in the context of a market in which all citizens inherently participate, and in which the law guarantees at least emergency health care to everyone, regulation of inactivity passes the "reasonable" test.

4. This does not mean that, in other contexts, regulating inactivity might well be beyond the pale of reasonability.

egarber said...

Dan, that's perfect! Go ahead and submit the brief :).

Dan said...

Phew, glad we fixed that issue. What's next?

egarber said...

...the Braves' post-season moves to avoid another collapse :)

Dan said...

Sorry, I'm a Red Sox fan; I've already got my hands full.

egarber said...

pizza, beer, and video games; check. :)

Mike: "take this sports crap to another blog, will ya?"

AF said...

As someone who believes that ACA is obviously constitutional, I was disheartened by all the time on severability too. But then I remembered that the government opposes severability on the ground that the individual mandate is an integral part of the Act's enforcement scheme -- which is, of course, a reason to find the Act to constitutional.

So it could be that the severability is really about this particular aspect of the merits argument -- whether the Act should be held as an integral part of a comprehensive enforcement scheme.

Dan said...


Does that mean that we might be treated to an oral argument with both the challengers and the SG arguing against severability? Delicious.

It's a pretty high-stakes gamble for the administration to go all-in on severability, just to show they're serious about the mandates. They must have reached the conclusion that it would be so administratively difficult to implement the law without the mandate that they don't want to bother trying.

But I wonder if they'll have to explain why they changed their mind (IIRC, they contested severability in the Florida and Virginia district courts), or if they'll have to address studies like this one which say the act would cover less people without the mandate, but would still cover 23 million people.

Joe said...

Shades of Judge Silberman, since so much was said already about #1, they should give about 30 min for it and use the time to deal with #2 and #4 to remind people there are other issues and #3 to underline there are other parts of the law. SCOTUSBLOG has an analysis up, e.g., talking about FIVE ways the law deals with the overall problem it addresses, the Court only directly covering a few of them here.

Dan now has to find the Red Sox some more pitching.

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