• Seven-Sky v. Holder

    I was teaching yesterday when the DC Circuit Court ruled in Seven-Sky v. Holder, which gave the Obama Administration another victory just in time for the cert conference this Thursday. That’s my excuse for not posting immediately after I’d read it (actually reading the opinion doesn’t slow some people down, but that’s another story).

    But since it’s 24 hours later, I’ve had a chance to read what others posted. The most substantial post that I read was published by BNA’s Health Law Reporter (paywall). When I was in private practice, BNA was required reading every day, and worth every penny.

    I’m going to focus on the Silberman opinion on the Commerce Clause, but Judge Kavanaugh’s 63-page dissent might be the more important text, at least in the short term. If the conservative justices see themselves losing on the Commerce Clause 5-4 or 6-3, they might find 5 votes to deny jurisdiction under the Anti-Injunction Act. That kicks the can down the road until 2014, a terrible result for health policy but one that some might find politically expedient.

    Some highlights from BNA, with my comments:

    Activity/Inactivity:

    Silberman’s opinion acknowledged the uniqueness of the health care market and the novelty of the individual mandate. However, the challengers’ argument that Congress could not compel currently inactive individuals to enter into interstate commerce also was novel, the court wrote.

    “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,” it said.

    This led the court to examine the text of the Constitution to determine whether it supported the challengers’ contention that there are limits on Congress’s commerce clause power…

    “Regulate,” at the time of the Constitution’s adoption and now, “can mean to require action,” … Nor does “commerce” refer to only “existing commerce,” it said.

    This is the mainstream position on the Commerce Clause. Nice to see that Silberman agrees.

    Economic/Noneconomic:

    Having found no support for the challengers’ argument in the text, the court turned to the Supreme Court’s prior decisions. It determined that the only “recognized limitations” on Congress’s power today are that “(1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate interstate economic behavior if its aggregate impact on interstate commerce is negligible.”

    “Those limitations,” the court wrote, “are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior—if only decisions whether or not to purchase health care insurance or to seek medical care—that does substantially affect interstate commerce.”

    Silberman reads Morrison and Lopez narrowly; again, this is the mainstream position.

    The broccoli argument

    The court also rejected the challengers’ concern that, if Congress could force individuals to buy insurance, it could force them to do anything.

    This argument “expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments,” the court wrote. “But it has no foundation in the Commerce Clause.”

    The mandate “seems an intrusive exercise of legislative power,” the court said. It added, however, that “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 family,” the court said.

    My colleague, Prof. Abby Moncrieff, has written on these embedded liberty interests in the ACA litigation. Perhaps SCOTUS will cite her work.

    On the politics:

    Influence on Justices?

    The D.C. Circuit’s opinion might have more of an influence on the Supreme Court’s ultimate determination of the constitutional issue, several experts said. Lazarus, for example, said that, given that Silberman shares the conservative viewpoint of several Supreme Court justices, it is “inconceivable” that Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr., and Anthony M. Kennedy “won’t take his opinion seriously.” These justices are likely to be influenced by Silberman’s reasoning, he said.

    Other experts, however, cautioned against predicting an early victory for the reform law. Gerson told BNA “the justices are still the justices.” While Silberman is a “very conservative, very good judge,” the justices “will decide on their own” and will not necessarily be influenced by his opinion.

    Still, Gerson said, the D.C. Circuit’s decision certainly gives the government optimism that the high court could rule in its favor, because the opinion is as important for who said it as it is for what was said.

    Silberman served in the Nixon, Ford, and Reagan administrations and was awarded the Medal of Freedom by President George W. Bush, according to Ian Millhiser, a policy analyst and editor of ThinkProgress Justice in Washington. He also is a personal friend of Scalia and Justice Clarence Thomas, Millhiser said.

    Millhiser said it is significant that this “leading light” of conservatism could find nothing in the text of the constitution to support the challenge to the mandate’s constitutionality.

    Sarah Kliff at WaPo/WonkBlog was quick off the mark with a good political analysis.  Prof. Brad Joondeph at ACA Litigation Blog did his typically excellent work summarizing the key legal points. Unlike BNA, these blogs are free!

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    • The Kavanaugh dissent deserves a separate blogpost. As a non-lawyer (and amicus), I found it suprisingly persuasive. It’s rather repetitive, but it get’s better as it goes along. I’m still not sure what to conclude about the applicability of the Anti-Injunction Act, although the majority’s notion of giving the government’s position deference seems dubious. But Kavanaugh’s marshalls lots of precedents for not deciding a constitutional issue before it’s necessary to do so. This tack would actualy delay matters until early 2015, says Kavenaugh, when people would have to pay the penalty on their 2014 returns. I’m not convinced that this would be “a terrible result for health policy.” At that point, as Kavanaugh says, there would be a lot of options for fixing the law to cope with an adverse decision. Of couse, one’s assessment must depend in part on how one thinks the Supreme Court will decide.

      On a separate but related topic: Is there any chance that the Supreme Court will not grant cert?

      • P.S. Kavanaugh’s dissent also recognizes that the individual mandate is in important respects a fundamentally conservative notion. “Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-governmemt-benefit model that is common now.” I hope the Supremes read it carefully.