(from CQ Weekly, February 7, 2011)
By Seth Stern, CQ Staff
Last week’s federal court ruling declaring the health care law unconstitutional surprised no one and settled nothing. It merely evened the score, as one more court at the lowest level weighed in on a case bound for the highest.
Yet the name of the federal judge in Florida who made the decision, Roger Vinson, rocketed into the top 20 on Google’s “hot list of searches — “on fire” in Google parlance, along with Kim Kardashian. Searches for the “Commerce Clause” surged too.
Outside the Beltway, Wisconsin’s attorney general advised the governor that the 2010 overhaul was “dead” and that state officials were under no obligation to implement it. Florida said it would return a million dollars to the federal government that the state originally accepted to implement the law.
Inside the Beltway, a virtual feeding frenzy began as partisans spun the decision to advance their political agendas — and to claim the mantle of constitutional rectitude. Texas Republican Lamar Smith, chairman of the House Judiciary Committee, declared momentously that the “foundation of the Democrats’ health care law is crumbling.”
The political and legal battles over health care have now converged, and the two are certain to feed off each other for months to come. While the House has voted to repeal the law, the Senate has turned back such an effort, and the White House would veto it in any case. So the next decision on the law will most likely come from the Supreme Court, which, if it decides to take up the case, probably will not rule for at least a year, and possibly in the middle of the next presidential campaign.
The health care law, with its controversial mandate that people must have health insurance or pay a fine, affects pretty much every American. The result is an intensity of public interest in what might otherwise be a largely academic and narrow debate over constitutional law, and whether the Commerce Clause, in granting Congress the power to regulate economic activity, applies to health insurance.
The confluence of interests is “quite remarkable,” says Robert E. Moffit, senior fellow at the Center for Policy Innovation at the conservative Heritage Foundation. The last time there was a broad popular discussion of the Commerce Clause, he says, was in 1788 when the country debated the Constitution in ratification conventions.
“I think it’s really quite exciting that the public is being reacquainted with key elements of the Constitution’s grant of authority to Congress,” he says. “What’s exciting about all this is we’re actually starting to debate these issues more broadly, not only about how do you control health care costs, but how we’re actually going to be governed.”
As lawmakers focused on the decisions so far, it was hard to tell whether they were referring to a court decision or a tennis match. “For those who are keeping score as to the challenges in federal courts to this law, make certain that you know the numbers,” said Illinois Democrat Richard J. Durbin, as he convened a Senate Judiciary Committee hearing on the law’s constitutionality two days after Vinson’s ruling. The “score” is indeed tied at 2-2.
Before any cases were argued, experts had forecast a blowout against the challengers. So a tie is a something of a victory for them. And supporters of the health care law, who were dismissive if not mocking about the prospects of such legal challenges a year ago, aren’t so smug any more.
The ruling in Florida and an earlier one in Virginia gave a sheen of legitimacy to the argument put forth by opponents that nothing in the Constitution authorizes Congress to mandate that individuals buy health insurance.
The rulings have also provided new momentum for Republican opponents of the law in Congress and statehouses, who quickly brought a repeal vote to the Senate floor and argued that they no longer had to move forward with implementing the law.
Back to Law School
In its most simplified expression by opponents, the case raises a question the Supreme Court has never confronted: whether the Commerce Clause gives Congress the power to regulate economic “inactivity”— not buying insurance — as well as activity.
The metaphors employed by critics closely tracked the political talking points cited by opponents during the health care debate and by Judge Vinson in his ruling: If the government can make you buy health care, it can make you buy anything — or even eat broccoli.
The questions involved in the case, of basic liberties, of the limits of congressional power, of the true meaning of the Founders in writing the Constitution, set the legal world on fire. In the Senate Judiciary hearing, a panel of distinguished law professors and senators dug into these questions and clearly enjoyed the exchange.
“I feel like I’m back in law school,” commented Republican John Cornyn of Texas. “Well, I feel like I’m back in — in law school,” said Minnesota Democrat Al Franken, who added to laughter that he had never gone to law school. Connecticut’s new senator, Democrat Richard Blumenthal, said that “if law school had been this interesting and enlightening, I’d have gone to more classes.”
The reason Vinson’s ruling surprised no one following the legal debate was that he had offered broad hints about his direction during oral arguments in mid-December. The plaintiffs included a coalition of mostly Republican governors and attorneys general from 26 states.
Vinson held that the individual mandate impermissibly regulates people who opt against buying health insurance — what he labeled economic inactivity — rather than the sort of economic activity he said is a “prerequisite” for an exercise of Congress’ power to regulate commerce. It is the same rationale employed by Judge Henry Hudson, another Republican-appointed district court judge in Virginia. He also declared the individual mandate unconstitutional in an opinion released Dec. 13 in a case filed by state officials.
But while Hudson let the other portions of the law stand, Vinson concluded that the individual mandate wasn’t severable from the rest of the law and ruled that every provision must be thrown out. Such an outcome would provide opponents of the health care overhaul a far more sweeping victory.
Republican lawmakers immediately cited the Florida ruling as evidence of growing momentum against the law, in both Congress and the courts.
Nonstop coverage of the decision on cable news and talk radio provided cover to Republican lawmakers’ attempts to push back against the law and at least temporarily eased concerns that voters would prefer that they focus on the economy rather than a health care law they can’t realistically defeat legislatively.
Michael B. Enzi of Wyoming, the top Republican on the Senate Health, Education, Labor and Pensions Committee, said the ruling “moves us one step closer” to overturning the law. On the day of the ruling, Republican Sens. Lindsey Graham of South Carolina and John Barrasso of Wyoming announced their intention to introduce legislation that would allow states to “opt out” of unpopular provisions of the law.
On Feb. 2, Republicans tried tacking a repeal of the law onto an unrelated measure pending on the Senate floor. The attempt was defeated along party lines.
Democrats, meanwhile, tried equally hard to minimize the significance of the ruling. Rep. Pete Stark of California called it “partisan posturing,” and Stephanie Cutter, who has led the White House messaging effort on the law, labeled it “well out of the mainstream of judicial opinion.”
They also emphasized that Vinson was just one federal judge who had weighed in on the law and that the scorecard was now tied. “If one robin doesn’t make a spring, then one Florida judge doesn’t make a repeal,” Durbin said at a briefing the next day.
Legal experts who support the law suggested that the ruling said as much about the plaintiffs’ skills at picking friendly forums to file suit as the case’s underlying merits.
“When you’ve got as many federal district court judges out there who run the gamut of philosophical perspectives, it’s not hard to find some who will strike it down, but as you move up to the circuit courts and the Supreme Court, the outlier opinions are going to be weeded out,” says David Orentlicher, a health care law professor at Indiana University School of Law-Indianapolis.
Durbin predicted at the Senate Judiciary hearing that the Supreme Court would ultimately uphold the health care law, just as it did with other major laws initially rejected by the lower courts, including the Social Security Act and the Civil Rights Act of 1964.
Steeped in Tea
For supporters of the health care overhaul, the rhetoric Vinson sprinkled throughout his 78-page opinion grated as much as his legal reasoning, particularly the not-so-subtle reference to what has become a central symbol for the law’s opponents.
“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place,” Vinson wrote.
The sentence seemed designed to tap into the anger over the health care law that helped fuel the tea party movement. Members of the diffuse movement share a common concern that the federal government has overstepped the powers set forth in the Constitution.
“One doesn’t write a couple sentences about the tea party without being aware of how it resonates in the public sphere,” says Mark Hall, a health care law expert at Wake Forest University. “That seemed to be a court writing an opinion with a view toward political or social resonance.”
Vinson also quoted a statement made by Barack Obama while he was still a senator: “If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.”
The National Republican Senatorial Committee quoted both lines from Vinson’s opinion in a Feb. 3 e-mail fundraising appeal.
The public perception of the health care rulings as political might be shaped by the fact that all four judges have tracked the preferences of the party of the president who appointed them. “If there were six decisions and it was a mixed group of judges on either side, it would be an exciting legal issue, but the partisan part wouldn’t be there,” says Barry Friedman, a New York University law professor and author of a book examining how public opinion influences the Supreme Court. “If the judges deciding these cases weren’t so easily identified with the outcomes, it would be a legal horse race about what view would prevail, but people wouldn’t associate it with partisanship or politics.”
The emphasis on who appointed Vinson also troubles Moffit of Heritage. “What’s problematic about the last 48 hours is this rush to judgment to say this is just a political decision because it’s a Reagan appointee,” Moffit says. “The question is not whether Ronald Reagan appointed Roger Vinson or not. The question is, as Vinson proposes it, does the authority vested in Congress enable it to require an American citizen to buy a particular product.”
The political undertones of the Florida decision and the ways it was immediately seized upon by opponents of the law are not without precedent, says Jeff Shesol, author of “Supreme Power: Franklin Roosevelt vs. The Supreme Court.”
Shesol says President Franklin D. Roosevelt’s New Deal enactments came under even fiercer attacks in the courts. Shesol notes that five new lawsuits a day were being filed against the Agricultural Adjustment Act in the summer of 1935; more than 100 district court judges held acts of Congress unconstitutional; and federal courts issued 1,600 injunctions blocking enforcement of New Deal laws. Felix Frankfurter, the Roosevelt ally and future Supreme Court justice, complained that judges opposed to the New Deal were making stump speeches from the bench.
“Those early rulings got considerable play in the papers, the incendiary opinions by the judges themselves or delivered extemporaneously from the bench were widely reported, and they thrilled opponents of the New Deal. These statements were collected and recycled again as political cudgels against the administration,” says Shesol. “There is a hope on the part of opponents to these laws that they develop some kind of political momentum that can’t be broken by any court.”
Regardless of whether the rulings provide new political momentum, the attorneys behind the lawsuits say two judgments in their favor help their legal cause as they advance toward the Supreme Court.
“Litigants making arguments is one thing,” says David Rivkin, a Washington, D.C., attorney and lead outside counsel in the Florida case. “But when you have a member of the federal judiciary seizing those points and articulating them in a compelling fashion, it creates its own reality. It’s not easy to ignore.”
At the very least, it is vindication for those whose questions about the constitutionality of the health care law a year ago were dismissed by many prominent legal scholars across the ideological spectrum.
Appearing on Fox News Channel after Florida officials first filed the suit in March 2010, Charles Fried, a Harvard Law School professor and solicitor general during the Reagan administration, called the challenge “ridiculous.”
When host Greta Van Susteren asked whether there was any possibility he might be proved wrong, Fried offered to “come on this program and eat a hat which I bought in Australia last month made of kangaroo skin.” (Fried remained equally certain about the law’s constitutionality when he testified before the Senate Judiciary Committee last week but made no glib promises.)
In hindsight, Orentlicher says, such predictions built up unrealistic expectations about how the legal challenges might proceed. “It sent the wrong impression that this will just sail through and no judge will strike it down,” he says.
Supporters of the law had good reason for confidence, given how much deference the Supreme Court has given Congress regarding exercises of its powers under the Commerce Clause since the New Deal. A conservative majority under Chief Justice William H. Rehnquist eventually imposed some limits in a pair of decisions handed down in 1995 and 2000. In those cases, the court rejected a federal law prohibiting guns within 1,000 feet of schools and a provision of the Violence Against Women Act as non-commercial activity that didn’t substantially affect interstate commerce. More recently, the court upheld the federal power to prohibit the cultivation of medical marijuana by reasoning that it was “economic activity” in the 2005 case Gonzales v. Raich.
Supporters of the health care law cite those cases as support for the conclusion that the decision whether to buy insurance is an economic one with substantial effect on the interstate health market, and thus falls within the contours of what Congress can regulate.
Supporters alternatively rely on another constitutional provision and say the individual mandate is a “necessary and proper” means to accomplish the underlying purpose of regulating the insurance industry.
But opponents say the decision not to buy health insurance is not the sort of “economic activity” at the center of prior Supreme Court precedent.
As Georgetown University law professor Randy Barnett wrote in a 2009 paper for the Heritage Foundation, “Congress could require every American to buy a new Chevy Impala every year” or require “all Americans to buy a certain amount of wheat bread annually to subsidize farmers.”
Progressive lawyers have scoffed in the past at the activity-inactivity distinction. Simon Lazarus of the National Senior Citizens Law Center labeled it “empty verbal gimmickry” in a December 2009 position paper for the liberal American Constitution Society. More recently, Timothy S. Jost, a professor at the Washington & Lee Law School in Lexington, Va., says it is “an artificial distinction that has never been significant before with respect to the Commerce Clause.”
But the argument figured prominently in the legal briefs filed in challenges to the health care law, along with other legal questions such as whether the law is authorized by Congress’ taxing power or whether provisions governing Medicaid constitute impermissible coercion of the states.
Those other issues have gained little traction as the lawsuits have made their way through the trial courts. But both judges invalidating the law seized on the activity-inactivity distinction as the key test in determining whether the individual mandate passed constitutional muster.
“If some type of already-existing activity or undertaking were not considered to be a prerequisite to the exercise of commerce power . . . it would be virtually impossible to posit anything that Congress would be without power to regulate,” Vinson wrote in his Jan. 31 ruling.
Not Just for Lawyers
As the political and legal battles merge, the fact that the central legal question has turned out to be one readily understood by the public is likely to make it easier for opponents to argue their case in the court of public opinion.
“Of course it helps,” says Rivkin. “Is it serendipity that we’re so fortunate to have an argument that’s so easily comprehensible to a layman as to a lawyer? No. It’s because we’re dealing with fundamental constitutional principles that are easily recognizable to a layman.”
Along with the legal arguments, both sides talk in apocalyptic terms about what might result should their opponent’s vision of the Commerce Clause prevail.
Liberals warn it is merely the first step in a broader campaign to roll back the reach of the federal government to where it was before the New Deal — or the Progressive Era.
“What’s involved here is a much broader attack on a whole range of regulations of civil rights, the environment, workplace safety,” says Jost. “The agenda here is to say that the Court has gone much too far in recognizing power under the Commerce Clause to do all kinds of things.”
On the other side, conservatives warn that if the mandate is upheld, there will be few limits on what the federal government might do in the name of the Commerce Clause. “The relationship of the people to the federal government would fundamentally change,” Barnett warned in his testimony last week before the Senate Judiciary Committee. “No longer would they fairly be called ‘citizens’; instead, they would more accurately be described as subjects.”
To Shesol, the alarmist rhetoric has echoes of the New Deal, when Justice James McReynolds warned in an extemporaneous dissent from the bench that if the majority’s reasoning was followed “almost anything — marriage, birth, death — may in some fashion affect commerce.”
“The decision is wider than the people of this country can dream,” McReynolds warned.
In all likelihood, the circuit courts , which have already taken up the Virginia case and a ruling from Michigan, will remain the venue for the next round of decisions. The U.S. Court of Appeals for the 4th Circuit, which is considering the Virginia appeal, has scheduled oral arguments in the case in May and could announce a decision as early as this summer.
As was the case in Florida, any circuit court decision will be viewed through the prism of which presidents appointed the people on the three-judge panel randomly assigned to hear the case.
The 4th Circuit, which once had a reputation as particularly conservative, is currently composed of nine Democratic and five Republican appointees. Mark Tushnet, a Harvard Law School legal historian, says one wild card to watch is J. Harvie Wilkinson III, a well-respected conservative Republican-appointed judge, who nevertheless might vote to uphold the law should he be assigned to the case. Such a vote would undercut complaints that a ruling in favor of the law is merely a reflection of the proportion of Democratic appointees on the court.
The appeals process could be further lengthened by several more months if the losing party asks for “en banc,” or full circuit court, review of the judgment. But Thomas C. Goldstein, Supreme Court litigator and publisher of SCOTUSblog.com, predicted that state officials competing to get their case to the Supreme Court first would probably forgo en banc review. “Everybody has their foot on the gas pedal,” says Goldstein.
It wouldn’t be the first time in recent memory that the Supreme Court considered a momentous case during a presidential election year. Abortion rights lawyers rushed to get a major abortion case heard by the court in advance of the 1992 presidential election.
In his book “The Nine,” Jeffrey Toobin recounts that Rehnquist resented such a transparent attempt to inject the court into the abortion debate during an election year. Rehnquist tried to keep it off the list of cases the justices would consider, but ultimately relented because of objections from colleagues. But the majority opinion that resulted wasn’t the clear-cut affirmation or rejection of abortion that lawyers in the case had thought could help sway the presidential election.
The lesson, which may or may not please those seeking clarity on health care, is that Supreme Court justices might not be able to avoid the most politically charged questions of the day, but they can write their way around them.