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6CA Rejects Radical Challenge to the ACA

[ 24 ] June 30, 2011 |

It’s a bit of an upset, but good to see the 6CA panel do the right thing. It should be noted that while both majority opinions do an excellent job of attacking the bad commerce clause arguments underlying the challenge to the ACA, James Graham’s dissent does a good job of self-refutation. Consider this passage:

Here, Congress’s exercise of power intrudes on both the States and the people. It brings an end to state experimentation and overrides the expressed legislative will of several states that have guaranteed to their citizens the freedom to choose not to purchase health insurance. The mandate forces law-abiding individuals to purchase a product – an expensive product, no less – and thereby invades the realm of an individual’s financial planning decisions. (“Neither here nor in Wickard had the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities.”). In the absence of the mandate, individuals have the right to decide how to finance medical expenses. The mandate extinguishes that right.

Graham starts off with policy arguments that are irrelevant — the fact that the ACA “brings an end to [some] state experimentation and overrides the expressed legislative will of several states” means nothing in itself, since all kinds of valid federal legislation does so, and the stuff about state legislatures suggests that Graham stopped reading the Constitution before he got to Article VI. But the real key is the last sentences, which suggest that what’s at issue here is not really federalism but a desire to return to a radical Lochner-era liberty of contract — a state mandate, after all, would also “invade the realm of an individual’s financial planning decisions” and “extinguishes the right to decide how to finance medical expenses.” And at this point, the whole shaky edifice collapses, because in fact Lochner hasn’t been good law for many decades, and as Graham concedes the federal government could clear create a more centralized and government-controlled system than the ACA does, opening up the frightening possibility that the U.S. could cover more people for less money like every other major liberal democracy.

The quality of the opinions arguing against the constitutionality of the ACA we’ve seen so far have been remarkably bad, but in part that’s because the argument itself is inherently weak. The only coherent argument against the ACA requires reading quasi-libertarianism into the Constitution, a long-discredited project that has vanishingly tiny amounts of political support.

Comments (24)

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  1. dan says:

    “In the absence of the mandate, individuals have the right to decide how to finance medical expenses.” That’s a pretty odd argument for the unconstitutionality of the ACA when you consider that a common method of “financing” medical expenses is to rely on a federal law that mandates that third parties pay for the expense of emergency services.

    • Scott Lemieux says:

      Exactly. And to call has subsequent dismissal of the unique aspects of the health-care market “hand-waving” would overstate the amount of energy involved.

  2. DivGuy says:

    . The only coherent argument against the ACA requires reading quasi-libertarianism into the Constitution, a long-discredited project that has vanishingly tiny amounts of political support.

    Lochner, though, lies at the heart of the modern conservative project. The libertarian divinization of contract is the intellectual basis of the entire anti-regulatory, “free market” movement. I think a lot of people, right and center, would be surprised to hear the degree to which the state’s right to regulate private contracts is settled constitutional law, and the implications of that.

    My fear is that it’s not just libertarians and peculiarly-educated lawyers who want to return us to Lochner. I think a large swath of the American elite already believe in the basic libertarian theology of contract, and there would be significant support in mainstream discourse for this sort of turn in constitutional law.

    • Malaclypse says:

      I think a large swath of the American elite already believe in the basic libertarian theology of contract, and there would be significant support in mainstream discourse for this sort of turn in constitutional law.

      After this thread, I believe that a large swath of American liberals already believe in the basic libertarian theology of contract.

      • DivGuy says:

        Yup. Left Blogistan is a somewhat weird place, politically, because it’s made up mostly of affluent young(ish) white men. The confluence of affluence and priviledge generally produces ideological affinity for libertarianism, especially on issues like contract, where a belief in your own brilliance and un-exploitability makes one more susceptible to the theology of contract.

        I don’t think most of the ordinary folks that make up the actual left, center and center-left think this way.

        But our elite is dangeously susceptible to this sort of idiocy, and Left Blogistan is very closely related in to the American elite, demographically.

        • DrDick says:

          Thereby demonstrating the difficulty of protecting stupidity from itself.

        • lawguy says:

          I must say that while I am a white male I am far from young or affluent. And I am probably much further to the left then most here. But then perhaps I’m the exception that etc.

          • mpowell says:

            It’s not a matter of being far left or not, actually. I’m a fairly moderate liberal and I don’t see anything wrong with the state regulating private contracts. It has more to do with being immersed in the American political culture and not questioning some of the fundamental tenets of that culture.

  3. With certain notable exceptions, the ACA brings an end to state experimentation in health care financing.

  4. Anderson says:

    Graham’s dissent is just bizarre.

    In Lopez the Supreme Court recognized that the direction of its existing Commerce Clause jurisprudence threatened the principle of a federal government of defined and limited powers, and it began the process of developing a new jurisprudence more compatible with the Constitution. That process was interrupted by Raich, where a majority of the Court was unwilling to expressly overrule a landmark Commerce Clause case in Wickard, which had been the law of the land for over sixty years.

    Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.

    So it’s not about following precedent, it’s about divining where he thinks the precedent is (or should be) heading? Towards a “new jurisprudence” that the (lower) court should “take the opportunity” to create?

    As Scott suggests, that’s pretty much the kinda crap one has to write to overturn the ACA, but it’s still amazing that a federal judge can write stuff like that without his head exploding.

    • Scott Lemieux says:

      And moreover, he’s not on the Supreme Court. He’s required to apply Raich whether he likes it or not.

      • Anderson says:

        Exactly. And he cites O’Connor’s dissent, like, 3 times.

        Sutton at least understands his job description:

        The Supreme Court can decide that Raich was a case only about the fungibility of marijuana, see Raich, 545 U.S. at 18–19, not a decision that makes broader and more extravagant assertions of legislative power more impervious to challenge. A court of appeals cannot.

        Possibly Graham thought that was just to keep Sutton on the Federalist Society xmas-card list, and not as a dig at his dissent.

        (And while I know what “fungibility” means, it still sounds like if my marijuana gets fungible, then I need to throw it out and smoke some fresher weed.)

        • Scott Lemieux says:

          Yeah, I was thinking of doing a follow-up post for TAP about that. It’s hard to make a better case for the obvious constitutionality of the ACA under current precedents than the fact that Graham can’t stop citing the dissent form the controlling case.

  5. The same argument can be made for the “unconstitutionality” of federally mandated Medicare and Social Security contributions. This, I am sure, is their ultimate goal.

    • Anderson says:

      I believe Medicare is structured as a tax; the tax argument for the ACA has not met with unqualified success, tho it may be valid.

      If the damn Democrats had set the ACA up as a tax *credit*, the courts would be having a much easier time affirming it. But they apparently thought it would be politically costly to “raise taxes.” Good thing they saved the 2010 election that way! Woulda hated to lose the House!

      • But they apparently thought it would be politically costly to “raise taxes.”

        Where “politically costly” is defined as “unable to pass Congress,” this is a true statement.

      • John says:

        I’m not sure that the courts are having a very hard time affirming it. So far, only total right wing hacks have struck it down. Do we really think that if the mandate had been constructed differently they’d have found the other way? These judges are finding it unconstitutional because the Republican Party has decided that, somehow, the law must be unconstitutional, and they settled on the mandate as the easiest way to do that. If it wasn’t the mandate, though, it’d be something else, and these judges would be tying themselves in knots in completely different (and possibly contradictory) ways to “prove” that it is unconstitutional.

      • DivGuy says:

        If the damn Democrats had set the ACA up as a tax *credit*, the courts would be having a much easier time affirming it.

        I really doubt it. The evidence here is that the only way to argue against the ACA, legally, is to rehabilitate dead precedent or just be a total hack and make no sense (or, most popularly, some combination of a and b). The right wins of the legal profession does not seem to have any interest the actual merits of cases with high political salience.

        Generally, making policy based on the idea that you can win the support of the right is the equivalent of running up to the football and trusting Lucy won’t pull it away this time.

  6. Ron E. says:

    You grossly underestimate the political support for the libertarian view of Federal economic regulation. It’s the overwhelming majority view in the Republican party — especially when there’s a Democratic President.

  7. richard says:

    The most important part of the case is Judge Sutton’s concurring opinion. Sutton is a Federalist Society Member, former clerk to Scalia and prominent feeder of clerks to the Supreme Court. Its his discussion of why the activity/inactivity distinction doesn’t make sense which will carry weight with judges or justices on the fence.

  8. bobbo says:

    Of course, the Supreme Court opinion striking down the ACA will be horrible too. That won’t stop them. Cf. Bush v. Gore.

  9. Murc says:

    You know, I actually really hope the mandate gets struck down. I mean REALLY hope.

    The ACA wasn’t written as a non-severable law! If the mandate goes down and the rest of it stays in place, that will completely destroy the modern american health insurance industry (I consider that to be a good thing.)

    Having said that, of COURSE there’s no way the mandate will be struck down. The ACA in no way, shape, or form compels people to purchase health insurance. It simply imposes a different tax structure on those who choose not to do so. Just like the feds impose different tax structures on those who choose not to marry, not to own a home or a boat, not to own a corporation, etc. And the conservative Supremes are evil and stupid, but they’re not THAT evil and stupid, you know?

  10. Joe says:

    Judge Sutton, ex-Scalia clerk (another ex-Scalia clerk wrote a law review article saying the VA law in place to force a challenge should not be deemed credible for standing purposes) and Federalist Society darling, concurred and it’s a BFD.

    He is clearly not a “True Scotsman” (Federalist) even though some of his arguments leave something to be desired (e.g., see Balkinization/tax argument). His “this inactivity/activity thing is lame” discussion is prime reading.

  11. [...] constitutionality reflect libertarian principles much more than federalist ones.   When a judge talks about “extinguishing the right” to finance one’s own medical expenses, the level of [...]

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