Bench Memos

Obamacare: Good Enough for Government Work?

The Obamacare case heated up in Atlanta today as three legal luminaries argued to a panel of Eleventh Circuit judges and an overflowing courtroom. The bottom line from today’s arguments: the decision probably won’t be unanimous, and it’s still anyone’s game.

From today’s arguments, the clearest signals were sent by Judge Frank Hull, a Clinton appointee who rejected Plaintiffs’ argument that the individual mandate to buy health insurance is regulating inactivity. She said she considered a decision not to buy insurance to be activity, and instead focused on whether it was an “economic” decision or not. She seems to be over-reading the economic/non-economic distinction in decisions like Lopez and Morrison, making the whole test of whether the Commerce Clause applies simply one of whether something (activity or mere “decision”) is economic or not. Thus she concluded, in the strongest statement I’ve heard for the government’s argument, that Lopez “doesn’t help you all,” asking, “What part could possibly help you?” 

If nothing else, Plaintiffs at least should be able to rely on the part in Lopez which clearly says there has to be a limiting principle on the reach of the Commerce Clause. The need for a limiting principle was raised by Chief Judge Dubina (a Bush appointee) and was reiterated by all three judges, who appeared unsatisfied by the answers given by the government.

Arguing for the federal government was Neal “Let’s crush them” Katyal, who has been on the front lines of the law’s defense even before it was passed and helped spearhead the extraordinary involvement of the solicitor general’s office even at the District Court level, both under then–Solicitor General Elena Kagan and as acting SG himself. 

Katyal’s argument runs into problems on several levels. One of his major points amounts to switching the default assumptions about activity. He repeatedly stated that the case isn’t about a failure to buy a product, but a failure to pay for it. But he never actually shows that people buy the product. Instead he assumes they will because they “can’t guarantee they won’t need health care.” Of course that puts the burden of proof completely backwards.

Mike Carvin, arguing for the private plaintiffs, made the most devastating retort to this kind of logic. He noted that, in Lopez, about 90 percent of the guns being regulated actually could have constitutionally been reached because they had traveled in commerce. But the Court struck the statute down because, as written, it was not grounded in the Commerce Clause. As Carvin put it, “the Court didn’t say ‘good enough for government work.’” Katyal seems to think the fact that most people will use health care at some point means we can just round up to “all people” and regulate away. Good enough for government work, maybe, but not good enough for the Constitution.

Another piece of the government’s argument should send shivers down the spine of any fan of limited government. On Katyal’s analysis, if Congress decides to enact comprehensive regulations of any economic market, courts must give them substantial deference in anything they choose to do that they decide will reach their goals. In other words, the broader the action Congress undertakes, the less supervision courts can have. That’s not just a blank check for big government, it’s a no-limit credit card.

Chief Judge Dubina’s questions suggested he might be more favorably disposed to plaintiffs’ arguments, Judge Hull became progressively more hostile to plaintiffs as the arguments progressed, and Judge Stanley Marcus (a Clinton nominee) appears to be the swing vote.  He had a somewhat quirky view of Lopez and Morrison which could bode ill for plaintiffs, however. He viewed their protection of the separation of powers as only addressing state vs. federal power, and inapplicable to the argument that federal government was infringing individual, not merely state, rights. While both Paul Clement and Mike Carvin did a fine job explaining that protecting individual rights were in fact the underlying rationale for states’ rights in the first place, Judge Marcus didn’t seem to buy it, and even mischaracterized Clement’s argument at one point to suggest he had abandoned defending the Tenth Amendment when he had explicitly stated the opposite.

Issues that received less play were standing (it sounds like the judges will be able to dodge the issue of state standing to challenge the mandate), whether the mandate is a tax (the judges seem to lean against the government on this one), and whether mandatory changes in Medicaid to qualify for continued federal funding amount to coercion of the states (Judges Marcus and Dubina seemed genuinely interested in this argument, but I doubt it will win the day). 

If the Court decides the mandate is unconstitutional, my money is on them severing at least the major insurance clauses (most of which were conceded by the government), but they probably will not follow Judge Vinson in declaring the entire statute unconstitutional. 

All in all an interesting argument, but this is just the warm up for the real fight that will happen at the Supreme Court. So stay tuned.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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