Thursday, March 28, 2013

How to Tax an Internet Retailer Even Without Physical Presence, New York Style

The New York Court of Appeals today upheld a state statutory presumption that internet retailer "associates" operating within the state provide a sufficient nexus for the state to collect sales tax on the retailer's state sales.  The ruling approves New York's end-run around the dormant Commerce Clause rule that a state can impose a sales tax on an out-of-state retailer only if the retailer has a physical presence--including economic activities by the retailer's employees, but not mere advertising.

With the rapid growth of internet sales across state lines, and with the last Supreme Court ruling on anything like this coming as far back as 1992 (on mail-order sales, of all things), this case may be a good candidate for high court review.

But on the other hand, the precise ruling in the case is rather limited.  That's because the plaintiffs in the case pressed only their facial challenge at the Court of Appeals, not an as applied challenge.  The problem here is that the statutory presumption can be rebutted, and an out-of-state retailer that can rebut it will also be exempt from it.  This gives the presumption some wiggle room in certain cases and may be enough to protect out-of-state retailers against state sales taxes when they don't have sufficient business activity to constitute presence.  The Court's ruling only says that the statutory presumption is not unconstitutional on its face.  That's a far cry from saying that it's constitutional in every application.

The case, Overstock.com v. New York State Department of Taxation and Finance, tests New York's statutory presumption that an out-of-state internet retailer's in-state "associate" is soliciting business for the retailer:

a person making sales of tangible personal property or services taxable under this article ("seller") shall be presumed to be soliciting business through an independent contractor or other representative if the seller enters into an agreement with a resident of this state under which the resident, for a commission or other consideration, directly or indirectly refers potential customers, whether by a link on an internet website or otherwise, to the seller . . . .

New York Tax Law Sec. 1101(b)(8)(vi).  The provision exactly describes Amazon's and Overstock.com's "associates"--local web-sites that include links to Amazon.com or Overstock.com and that receive a commission on each purchase through that link.  

But neither Amazon nor Overstock.com has a physical presence in New York.  And according to the Supreme Court in Quill Corp. v. North Dakota (1992), an out-of-state retailer like Amazon or Overstock.com has to have a physical presence in order for New York to impose a tax.  (Quill Corp. involved an out-of-state mail order retailer.  If you don't know what that is (!), click here.) Physical presence includes engaging in economic activities (like selling goods), but not advertising alone.

Enter the statutory presumption.  The presumption says that Amazon's and Overstock.com's "associates"--those New York-based web-sites that contain a link to Amazon or Overstock.com, and receive a commission on each sale--establish a sufficient nexus between the out-of-state retailers and the state so that New York can impose its tax.

And the New York Court of Appeals OK'd it.  The Court said that the retailers' associates were engaged in sufficient economic activity on behalf of the out-of-state retailers--business solicitation, and not mere advertising--to allow the state to tax.  

Judge Smith dissented.  He thought that the associates' links looked more like mere advertising, not business solicitation, and therefore weren't enough to establish a nexus between the retailers and the state.

The Court also rejected the retailers' due process claims, because the presumption is rational.  The Court explained:

It is plainly rational to presume that, given the direct correlation between referrals and compensation, it is likely that residents will seek to increase their referrals by soliciting customers.  More specifically, it is not unreasonable to presume that affiliated website owners residing in New York State will reach out to their New York friends, relatives, and other local individuals in order to accomplish this purpose.

SDS

 

March 28, 2013 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

Can States Limit Government Information to Their Own Citizens?

The Supreme court heard oral arguments yesterday in McBurney v. Young, a case testing whether a state's freedom of information law, or FOIA, can limit access to government information to its own citizens consistent with the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause.  (Together these provisions restrict states in discriminating against out-of-staters in the exercise of fundamental rights or important economic interests, or in interstate commerce.)  The case was brought by two out-of-staters against Virginia after the state denied them access to records related to the state's enforcement of a child support order and state property records collected for clients as part of a business.  Virginia is one of only three states that restricts its FOIA records to in-staters.

The case is tough, because it's not obvious that Virginia's restriction is a restriction on interstate commerce (in violation of the Dormant Commerce Clause), and it's not obvious that the access that the petitioners seek is the kind of right that they, as out-of-staters, should enjoy with respect to Virginia.

The questions from the bench went right to these points.  The Court was concerned about whether Virginia's restriction was, in fact, a restriction on commerce,  or whether it was merely a law, not a commercial regulation, that had at most an incidental effect on interstate commerce.  (The Dormant Commerce Clause points go to the property-records seeker, not the child-support seeker.)  In other words: does the Dormant Commerce Clause even apply, given that this may not be a regulation of commerce?

Justices were also concerned about the magnitude of the effect, on both sides.  As to the petitioners, they wondered why the cost to the petitioner wasn't negligible.  After all, any out-of-stater could simply hire an in-stater for a nominal fee to file their request and thus dodge the restriction.  As to the state, they wondered why the cost to the state in providing equal access to its records was significant.  The burden of addition requests from out-of-staters didn't seem to be much.

Finally the Justices wondered whether Virginia shouldn't be allowed to restrict access to its records, given that its law is designed to provide access to government information to ensure good government--a concern that applies uniquely to Virginians.  On this point, several Justices compared the right to access to the right to vote, and noted that out-of-staters don't get it.  In short: Shouldn't Virginia be able to keep its records to its own state citizens?  The question goes at least in part to the purpose of Virginia's FOIA--to provide information on governance (as the state would have it), or to restrict information in restraint of free trade (as the petitioner argued).

The parties didn't provide terrific answers to any of these questions.  But counsel for the petitioner did note that the challenge was as applied, not facial.  This could allow the Court to rule narrowly in favor of this individual, without overturning the restriction as to anyone else.  But even that result seems likely only if the Court can get over two threshold problems.  First, the restriction is not a direct discriminatory regulation of interstate commerce (even if it may have an indirect effect on interstate commerce in this case).  Next, Virginia is certainly able to restrict some of its state functions to its own citizens.  The question for the Court: Is this one of them?

SDS

February 21, 2013 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Privileges and Immunities, Privileges and Immunities: Article IV | Permalink | Comments (0) | TrackBack (0)

Monday, January 14, 2013

Court to Test Limits of Congressional Authority Over Sex Offender Registration

The Supreme Court on Friday agreed to hear a case asking whether Congress had authority to require a sex offender who already served out his sentence to later register when he moved within a single state.  The case comes three years on the heels of United States v. Comstock, another case involving congressional authority over federal criminals after their sentences have run, and one suggesting expansive congressional authority.  (Comstock held that Congress had authority under the Necessary and Proper Clause to designate federal prisoners as "sexually dangerous" and to detain them even beyond their original sentence.)  It also comes just one year after the Court's sharply divided and controversial ruling in NFIB v. Sebelius, the ACA/Obamacare challenge defining a limit on congressional authority and holding that Congress lacked authority under the Commerce Clause to require individuals to purchase health insurance.  (NFIB also held that Congress had authority under its taxing power to require individuals to purchase health insurance.)  This case, United States v. Kebodeaux, thus gives the Roberts Court yet another important opportunity to define congressional authority and to read that authority as relatively broad (as in Comstock) or to find an important limit (as in NFIB--even if a different limit than the Court found in that case).

Kebodeaux involves a challenge to the federal Sex Offender Registration and Notification Act, or SORNA.  SORNA, enacted in July 2006, requires sex offenders to register in the jurisdiction where they live.  It requires states to adopt specified federal standards for registration as a condition of receipt of federal funds.

Kebodeaux, a convicted sex offender who served out his sentence and was released from prison "unconditionally" (the Fifth Circuit's word), was convicted of violating SORNA by failing to register when he moved from El Paso to San Antonio.  Kebodeaux challenged his conviction on appeal, arguing that Congress lacked authority to penalize his failure to register in a purely intrastate move, because he had served his full sentence and was released by the time Congress enacted the registration requirement in SORNA.

The en banc Fifth Circuit agreed.  It ruled that Congress had no authority over Kebodeaux when he made an intrastate move after he served out his full sentence.  In short, the court said that the period of time between Kebodeaux's release and Congress's enactment of the registration requirement in SORNA broke the chain linking congressional authority and Kebodeaux, and Kebodeaux did not re-establish that chain (by way of the Commerce Clause) by crossing state lines.  The court distinguished Comstock on exactly that basis: in Comstock, the federal government still had physical control over federal prisoners designated "sexually dangerous," even if they were literally on their way out of the federal prison, and thus had authority to regulate them by ordering their continued detention; here, in contrast, the federal government had no control over Kebodeaux. 

Kebodeaux's facts go beyond those in Comstock, however, because this case is not merely about whether Congress can regulate the activity of someone still in federal custody past the expiry of his sentence.  Importantly, it raises the further question whether Congress can regulate his activity solely because he was once convicted of a federal crime.

Op. at 6.

The court also worries that this authority would know no bounds and would intrude into areas of state regulation.  And it worries that there is no authority, "from more than two hundred years of precedent, for the proposition that it can reassert jurisdiction over someone it had long ago unconditionally released from custody just because he once committed a federal crime."  Op. at 9. 

If these worries sound familiar, it's because similar worries drove the opponents of the ACA/Obamacare, and ultimately even the Court, in ruling that Congress exceeded its Commerce Clause authority in enacting the universal coverage provision, or the so-called individual mandate, in NFIB v. Sebelius.  Many of us didn't see this coming in NFIB.  A similar limit on congressional authority may be creeping up on us now.

On the other hand, the panel decision and sharp dissents in the Fifth Circuit en banc ruling argued that Comstock supported congressional authority to apply SORNA's registration requirements to Kebodeaux.  This case could well follow Comstock and (again) highlight expansive congressional authority over those once in federal control. 

Either way, Comstock, the sleeper of OT2009, will play a key role in the outcome.  And the case will give us one more important datapoint to plot the trajectory of congressional authority under the Roberts Court.

SDS

 

January 14, 2013 in Cases and Case Materials, Commerce Clause, Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Friday, November 30, 2012

Sixth Circuit Strikes Michigan's Bottle Return Label Requirement

The Sixth Circuit ruled in American Beverage Association v. Snyder that Michigan's requirement that returnable beverage containers bear a unique mark violated the Dormant Commerce Clause.  The ruling strikes Michigan's requirement. 

The ruling turns on the dormant Commerce Clause's "extraterritorial doctrine," which, according to one concurring judge on the panel, is "a relic of the old world with no useful role to play in the new[.]"  If so, this case could offer the Supreme Court a good chance to clean up this corner of the dormant Commerce Clause.

The case involves Michigan's bottle-deposit law, which requires consumers to pay a ten-cent deposit on a beverage container (like a can or bottle).  Containers sold in Michigan must bear a designation--"MI 10c"--in order to distinguish them from containers sold in other states.  Consumers who return a container with the "MI 10c" designation get a ten-cent deposit back when they return the container.  (Michigan is one of ten states with a bottle-deposit law.)

Some consumers discovered that they could return containers in Michigan that were purchased from states that have no deposit law (that is, non-"MI 10c" containers) and net ten cents on each return.  This was especially easy with "reverse vending machines"--automated return machines that did not distinguish between Michigan containers and out-of-state containers.

The Michigan legislature responded by requiring beverage manufacturers to place a unique mark on Michigan returnable containers (in addition to the "MI 10c" mark) that would allow a reverse vending machine to determine whether the container was, in fact, a Michigan returnable container.  Failure to comply could result in a penalty of up to six months' imprisonment or a $2,000 fine or both.

Manufacturers sued, arguing that the requirement amount to an unconstitutional restraint on interstate commerce in violation of the dormant Commerce Clause.

The Sixth Circuit agreed.  It ruled that while the requirement did not discriminate against interstate commerce (on its face, in its purpose, or in its effect), it did "directly control[] commerce occurring wholly outside the boundaries of a State," and thus was extraterritorial under Healy v. Beer Inst. Inc. (1989).  This doctrine renders extraterritorial regulation "virtually per se invalid under the dormant Commerce Clause."  Op. at 13.

Judge Sutton concurred but wrote separately "to express skepticism about the extraterritoriality doctrine."  Judge Sutton wrote that the doctrine may have outlived its usefulness.

SDS

November 30, 2012 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, November 26, 2012

Court Reignites Health Care Reform Challenge

The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit.  The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.

Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim.  The Supreme Court declined to review that case, Liberty University v. Geithner.  But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.

The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others).  (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.) 

The district court ruled against the plaintiffs on all counts and dismissed the case.  The Fourth Circuit dismissed the case under the AIA and didn't reach the merits. 

The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause.  Thus after NFIB these issues appear to remain open on remand:

  • Whether the mandates violate the Religion Clauses or the RFRA;
  • Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
  • Whether the mandates violate equal protection;
  • Whether the mandate violates free speech and associational rights.

As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).

As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.

If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.

But then again, that's what many of us said about NFIB.

SDS

November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 7, 2012

Daily Read: Elizabeth Warren on Federalism and Administrative Constitutionalism

With the election of Elizabeth Warren to the United States Senate, today might a good time to reread her  article Unsafe at Any Rate, published in Democracy: A Journal of Ideas in 2007.

473px-Elizabeth_Warren_at_Women_In_Finance_symposium

Warren was arguing for the creation of a new federal agency, the Financial Product Safety Commission.  In doing so, she not only argued in favor of regulation (using an originalist argument among others), but also argued that federal regulation was appropriate:

The credit industry is not without regulation; credit transactions have been regulated by statute or common law since the founding of the Republic. Traditionally, states bore the primary responsibility for protecting their citizens from unscrupulous lenders, imposing usury caps and other credit regulations on all companies doing business locally. While states still play some role, particularly in the regulation of real-estate transactions, their primary tool–interest rate regulation–has been effectively destroyed by federal legislation. Today, any lender that gets a federal bank charter can locate its operations in a state with high usury rates (e.g., South Dakota or Delaware), then export that states’ interest rate caps (or no caps at all) to customers located all over the country. As a result, and with no public debate, interest rates have been effectively deregulated across the country, leaving the states powerless to act. In April of this year, the Supreme Court took another step in the same direction in Watters v. Wachovia, giving federal regulators the power to shut down state efforts to regulate mortgage lenders without providing effective federal regulation to replace it.

Recall that in Watters, the Court found no merit in the Supremacy Clause (preemption) and Tenth Amendment arguments.

Warren also argued that a federal agency could intervene more successfully than Congress because "the financial services industry is routinely one of the top three contributors to national political campaigns, giving $133 million over the past five years" and thus "the likelihood of quick action to respond to specific problems and to engage in meaningful oversight is vanishingly slim."  

Although Congress eventually passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, with a FPSC agency, Elizabeth Warren was not named as its head given strong opposition to her by the Senate - the legislative body she will now be joining.

RR
[image: Elizabeth Warren via]

November 7, 2012 in Campaign Finance, Commerce Clause, Current Affairs, Federalism, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 19, 2012

Teaching the Commerce Clause After NFIB v. Sebelius

Professor Colin Starger has a terrific visual for teaching the commerce clause next semester:

Screen Shot 2012-07-18 at 7.31.01 PM

Take a look at the entire "poster" available on ssrn here; the explanations are necessary and excellent.

RR

July 19, 2012 in Cases and Case Materials, Commerce Clause, Teaching Tips | Permalink | Comments (2) | TrackBack (0)

Monday, July 2, 2012

Chief Justice Roberts's Necessary and Proper Clause

What did Chief Justice Roberts do to the Necessary and Proper Clause in last week's ruling on the universal coverage provision of the Affordable Care Act?

Not much.  Here's why.

Let's start with the opinion.  Chief Justice Roberts wrote last week that universal coverage--the so-called individual mandate--exceeded Congress's authority under both the Commerce Clause and the Necessary and Proper Clause (although he wrote for a five-Justice majority that it fell within congressional taxing authority).  (We wrote here about the Chief's opinion on the Commerce Clause.)  In so writing, the Chief rejected the government's argument that because Congress had authority under the Commerce Clause to enact the guaranteed issue and community rating provisions, it also had authority under the Necessary and Proper Clause to enact universal coverage.  After all, everybody agreed that guaranteed issue and community rating alone wouldn't work; they needed an individual mandate. 

(Here's a primer.  Guaranteed issue requires insurance companies to provide insurance to all comers.  Community rating control premium rates within a particular community.  Under these provisions, insurance companies will have to cover everyone (including those with high medical costs), within a range of premium rates.  But when an insurance company covers everyone (including those with high medical costs), premiums go up.  And when premiums go up, without an ability to discriminate, individuals are driven out of the market.  Thus, guaranteed issue and community rating will drive up costs and drive down coverage.  Unless, that is, individuals are required to buy insurance.  If everybody has to buy insurance, the cost-distribution within the insurance pool will keep rates low (because the healthy, in effect, subsidize the unhealthy through the pool), and coverage (obviously) goes up.)

Chief Justice Roberts wrote that the Necessary and Proper Clause wasn't so malleable.  He wrote that while universal coverage may be "necessary," it is not "proper," because universal coverage "draw[s] within its regulatory scope those who would otherwise be outside of it."  Op. at 30.  In other words, individuals are not the subject of the guaranteed issue and community rating regulations (insurance companies are); they are therefore not within the regulatory scope of valid congressional regulation under the Commerce Clause; and they are therefore outside of the scope of the Necessary and Proper Clause.  Op. at 29-30.  The Chief wrote that the Court's prior cases blessed congressional action under the Necessary and Proper Clause only when the subject of regulation under the Necessary and Proper Clause was already in the regulatory scope of congressional regulation under its principal Article I power.  Here's how he described it:

The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.  This is in no way an authority that is "narrow in scope" . . . or "incidental" to the exercise of the commerce power.  Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority.  No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation.  Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it.  Even if the individual mandate is "necessary" to the Act's insurance reforms, such an expansion of federal power is not a "proper" means for making those reforms effective.

Op. at 29-30.

So, what's the effect of the Chief's opinion on the Necessary and Proper Clause?  Very little.

There are two problems.  The first one is exactly the same problem with the Chief's opinion on the Commerce Clause, only here it's even more pronounced.  That is: the opinion may well be dicta, and, even if it's not, it doesn't have strong support as a guiding opinion under the Marks rule.  Like Chief Justice Roberts's opinion on the Commerce Clause, his opinion on the Necessary and Proper Clause is not necessary to the Court's conclusion.  Moreover, he's writing just for himself.  The four "liberals" would have upheld universal coverage under the Necessary and Proper Clause.  And the four other "conservatives" declined to join the Chief--and were in even sharper disagreement with him than they were on the Commerce Clause.  (The four other conservatives would apparently read the Necessary and Proper Clause as allowing only regulation that is absolutely necessary to the named Article I powers--a reading that flies in the face of McCulloch v. Maryland and the Clause's entire history.  Dissent, at 9-10.)

Moreover, the Chief's analysis is weak and apparently disavowed by all on the Court (though for different reasons), further alienating and weakening it.  Chief Justice Roberts supports his new Necessary and Proper rule--that Congress can regulate only those things already within the regulatory scope--by describing the Court's prior Necessary and Proper cases.  But while his description may be accurate on the facts, it is not supported by the language and analysis of those rulings.  For example, the Court just two terms ago ruled in Comstock that the Necessary and Proper Clause allowed congress to authorize the detention of federal prisoners beyond their release date if they were deemed "sexually dangerous."  Why?  Because the Necessary and Proper Clause allows Congress to enact federal criminal law (in furtherance of its named Article I powers), and therefore to sentence offenders, and therefore to jail offenders, and therefore to keep dangerous offenders off the streets, even after their release dates--all in the name of the Necessary and Proper Clause.

Now it turns out that offenders were already within the regulatory scheme.  But the Court's ruling did not turn on that, and, in fact, nowhere mentioned it.  Instead, the Court said, quoting the usual language from McCulloch, that the Necessary and Proper Clause authorized Congress to take any action that was rationally related to its enumerated powers.

(The Court's opinion in Comstock was written by Justice Breyer.  And Chief Justice Roberts joined it in full, even though he could have signed on with one of two more restrictive concurrences, written by Justice Kennedy and Justice Alito.)

In short, nothing in Comstock, or the Court's other Necessary and Proper decisions, sets out Chief Justice Roberts's new rule.  It's just his gloss.  And one, apparently, that nobody else on the Court subscribes to in his way and for his reasons. 

But assuming that the courts treat the Chief's opinion as (at least) guiding, however--as they likely will--the second problem is that the Chief's opinion is quite narrow and thus only applicable to a small set of cases, if any.  After all: How often does Congress seek to regulate something under the Necessary and Proper Clause that isn't within the regulatory scheme of its power-in-chief?  By the Chief Justice's own reckoning: The Court has never seen this case.

And even if the Chief's opinion is guiding, courts must read it alongside Justice Breyer's majority opinion in Comstock--the Court's next-most recent foray into the Necessary and Proper Clause, and, again, an opinion that Chief Justice Roberts signed in full.  Read alongside the expansive and capacious Necessary and Proper Clause described in Comstock, Chief Justice Roberts's new rule seems a narrow exception, indeed.  Chief Justice Roberts did nothing last week to chip away at that expansive and capacious Clause; in fact, his opinion last week reaffirmed its long-standing principles (just as his opinion on the Commerce Clause reaffirmed the Court's broadest interpretations of that Clause).

In the end, the Chief's opinions on both the Commerce Clause and the Necessary and Proper Clause are almost certainly moot, anyway.  The real story of the case is Chief Justice Roberts's majority opinion upholding universal coverage under the tax power.  Any future Congress seeking to enact legislation that would push up against Chief Justice Roberts's new rules for the Commerce Clause and the Necessary and Proper Clause would do well to simply enact the policy as a tax penalty.

SDS

July 2, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, News, Opinion Analysis, Recent Cases, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Friday, June 29, 2012

Did Chief Justice Roberts Craft a New, More Limited Commerce Clause?

In a word: No.  Or, even if yes, just by a hair--by adding just a footnote to the current doctrine.  Here's why.

Let's start with some background on the health care case.  While a five-Justice majority on the Supreme Court, led by Chief Justice Roberts, ruled yesterday that Congress could enact universal coverage in the Affordable Care Act under its taxing authority, a different five-Justice majority ruled that it couldn't enact it under the Commerce Clause.  Chief Justice Roberts found himself--or, more precisely, placed himself--with each majority.

Chief Justice Roberts wrote the opinion of the Court on the taxing authority.  His opinion on this point was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.

He also wrote an opinion on the Commerce Clause.  But he only wrote for himself.  While Justices Scalia, Kennedy, Thomas, and Alito joined him in the result--that Congress exceeded its Commerce Clause authority in enacting universal coverage--those four wrote a decidedly distinct opinion, styled a dissent, and did not join Chief Justice Roberts's opinion on this issue.  The Chief's opinion on the Commerce Clause is his own.

In sorting this out, as an initial matter, we need to know whether this single-Justice opinion, even if written by the Chief, is controlling.  There are two issues.

First, the Marks rule.  This rule, from Marks v. United States, says that when a majority on the Court agrees in a result, but cannot agree on a reason, the guiding opinion for future cases is the narrowest opinion on the winning side.  In the language of Marks, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds."

Here, Chief Justice Roberts wrote a slightly narrower opinion on the Commerce Clause than the dissenters.  But just barely.  They all said that Congress lacks authority to regulate inactivity (more on this below), and that therefore Congress lacks authority to require individuals to purchase health insurance.  This just-barely-narrower opinion, along with the Court's own characterization of Chief Justice Roberts's opinion as "an opinion" and the dissenters' opinion as "a dissenting opinion," Chief Justice Roberts's opinion, so far, is almost surely the guiding opinion under the Marks rule.

But there's another issue.  It's not clear that Chief Justice Roberts's opinion on the Commerce Clause is anything more than dicta.  In other words, Chief Justice Roberts's ruling on the Commerce Clause isn't necessary to the Court's ruling upholding universal coverage under the taxing authority.  Chief Justice Roberts argued in Section IIID of his opinion--again, writing just for himself here--that his analysis of the Commerce Clause was necessary, because "the statute reads more naturally as a command to buy insurance than as a tax," and "[i]t is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question."  But this is an exceedingly weak justification.  There's nothing that says that an argument presented alternatively must be addressed in the order presented.  (Here, the government argued first that the Commerce Clause supported universal coverage and second that the taxing authority did.)  Indeed, the better course--the judicial minimalist course--would be not to address it.

More importantly, Chief Justice Roberts's explanation gets only one vote.  Moreover, it's not necessary to any other Justice's analysis--even the dissenters.  (Why?  Because the dissenters object to everything.  They don't need to explain why they address the Commerce Clause--they have to address it as an alternative argument, because they also rule universal coverage unconstitutional under the taxing authority.)  Thus, it is not the holding of the Court on its own (because it gets only one vote) and it is not the guiding holding of the case under Marks (because it reflects the ruling of no other Justice).  If Chief Justice Roberts's weak explanation isn't the law, it seems, his analysis based upon that justification is also highly suspect.

If all this is right, then we have a highly fractured Court with no controlling opinion on the Commerce Clause.  If that's right, then the Commerce Clause hasn't changed.

But let's assume that's not right--because, in fact, courts will probably treat Chief Justice Roberts's opinion on the Commerce Clause as guiding.  Does the substance of his opinion limit the Commerce Clause?

The answer: Yes, but just by a hair.  Chief Justice Roberts wrote that the Commerce Clause doesn't allow Congress to require activity where there is no existing market.  In other words, Congress can't compel individuals to act without a background interstate market. 

But Chief Justice Roberts was also very careful to write that Congress has never done this before.  (Indeed, that's his stated reason to "pause to consider the implications of the Government's arguments."  Op. at 18.)  Agree or disagree with that conclusion, by its own terms it means that this is an exceptional, outside case.  That's the same thing that the government has said all along, although in different terms: the health-care market is different.

If everybody agrees that this is an exceptional case, Chief Justice Roberts's restriction on the Commerce Clause--that Congress can't regulate inactivity without a background interstate market--applies only in the rarest of circumstances.  Other than the very unusual hypos the Court tested at oral argument--a market for burial services (justifying a requirement to buy burial insurance), a market for emergency services (justifying a requirement to buy a cell phone to dial 911), and, of course, a market for food (justifying a requirement to buy broccoli)--this restriction will have no effect on congressional authority.

Indeed, even Chief Justice Roberts wrote--citing and reaffirming even those cases that reflect the broadest Commerce Clause power we've seen--that it never has had an effect on congressional authority

The only workable rule in the opinion is that Congress can't regulate inactivity when there's no background interstate market.  But by the Chief's own reckoning, this will only apply in the rarest of cases.

In other words: Chief Justice Roberts may have restricted the Commerce Clause, but just by a hair.  The restriction will be a mere footnote when we teach the modern doctrine.

But some have argued that the spirit of the opinion (if not the law of the opinion) reflects a restricted authority.  The bottom-line holding belies this: Congress has authority to enact universal coverage.  The aggregate weight of congressional authority hasn't much changed, even if it shifted a little from commerce to taxation.

In the end, Chief Justice Roberts's opinion on the Commerce Clause will make little difference.  There's a remote chance that it won't emerge as the controlling or guiding opinion; but even if it does (as seems highly likely), it just doesn't change the doctrine or the spirit all that much.

SDS

June 29, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, News, Opinion Analysis | Permalink | Comments (3) | TrackBack (0)

Thursday, June 28, 2012

Supreme Court Upholds Affordable Care Act

A sharply divided Supreme Court today upheld key provisions in the Affordable Care Act (the "ACA," or Obamacare).  The upshot is that five Justices (Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan) held that universal coverage (or the individual mandate) is upheld, and that a three-Justice plurality (Chief Justice Roberts and Justices Breyer and Kagan) held Medicaid expansion is upheld in a somewhat weaker form.  A different five Justices (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito) held that the commerce clause did not support universal coverage (but for different reasons).

The ruling means that universal coverage stands, and Medicaid expansion stands, although in a somewhat weaker form.

Our analyses of oral arguments are here, here, and here.  We'll have more analysis of the opinion; here's just a breakdown of the holding.

Chief Justice Roberts wrote for the majority; by issue:

Taxing Clause.  A five-Justice majority held that Congress could enact the universal coverage provision (also called the individual mandate) under the taxing authority.  Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, wrote that the tax penalty for failing to purchase health insurance was a valid tax.  

First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more.  It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the "prohibitory" financial punishment in Drexel Furniture.  Second, the individual mandate contains no scienter requirement.  Third, the payment is collected solely by the IRS through the normal means of taxation--except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.

Op. at 35-36.  The majority was untroubled that the tax penalty could be a "tax" for taxing authority purposes, but a non-"tax" for Anti-Injunction Act purposes: Chief Justice Roberts wrote that Congress itself enacted the AIA and could therefore itself draft around it (which it did here); but Congress's taxing authority may support congressional action whether or not Congress calls its action a "tax."

Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing that universal coverage exceeded the taxing power.

Commerce Clause.  A five-Justice majority concluded that the Commerce Clause did not support congressional authority to enact universal coverage, but for two different reasons.  Chief Justice Roberts, writing for himself alone, wrote that universal coverage amounted to regulating before entrance into the market for health services--i.e., regulating someone who's "inactive."  (And Chief Justice Roberts didn't buy the government's claim that the maarket for health insurance was integrally connected to the market for health care.)  Chief Justice Roberts wrote that universal coverage was unprecedented and unsupported by the Court's cases.  (Chief Justice Roberts justified reaching the issue--even though the case could be (and was) decided on the taxing power alone--because, he said, the government designed universal coverage first as a regulation and only secondly (or alternatively) as a tax.)

Justices Scalia, Kennedy, Thomas, and Alito took a harder line, arguing that Congress here went too far, because it first sought to create commerce, and then to regulate it.

Medicaid Expansion.  Chief Justice Roberts wrote for himself and Justices Breyer and Kagan that Medicaid expansion as-is under the ACA--in which a state declining to participate in Medicaid expansion would stand to lose its entire pot of federal Medicaid money--was unduly coercive.  But the same plurality held that Medicaid expansion could be saved by simply reading the statute to mean that a declining state could lose only the additional federal money that would have come with the expansion.

Justices Ginsburg and Sotomayor wrote separately to argue that Medicaid expansion as-is under the ACA did not violate the Constitution.

Justices Scalia, Kennedy, Thomas, and Alito dissented, writing that Medicaid expansion was flatly unconstitutional.

SDS

June 28, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, Spending Clause, Taxing Clause | Permalink | Comments (3) | TrackBack (0)

Tuesday, May 29, 2012

Washington Judge Defers to State AG in Health Reform Challenge

Washington Superior Court Judge Sharon S. Armstrong denied the plaintiffs' motion for a preliminary injunction, or in the alternative for a permanent injunction and mandamus, in Mackey v. McKenna, the state court suit by a group of Washington women against the state attorney general challenging the state AG's role in the Affordable Care Act litigation now at the Supreme Court.

As we posted, a group of Washington women sued state AG Rob McKenna seeking a state court order requiring McKenna to file corrective pleadings asking the Supreme Court to uphold the ACA provisions that protect women's health care, even if it strikes down the so-called individual mandate.  The plaintiffs claimed that McKenna himself said that it was in the best interest of Washingtonians to invalidate only the individual mandate, and to leave certain other provisions of the Act in place--in other words, to sever the mandate.  Yet he joined the state in the multi-state suit challenging the entire ACA, and the plaintiffs' position in that case that the mandate was not severable.  The plaintiffs said that this violated his professional duties to Washingtonians.

Judge Armstrong rejected the argument.  She wrote:

Had Attorney General McKenna taken the formal legal position that only severability could protect the interests of the State of Washington and its citizens, and then filed contrary briefing in the federal courts, he would have violated his ethical duty to faithfully represent the interests of the State of Washington and its residents, would have improperly relinquished control over his role in the litigation to other attorneys general, and filed an erroneous brief to the U.S. Supreme Court.

But here the court found that statements by McKenna contrary to his litigation position were merely "political statements by an elected official," and were thus "issues to be addressed in the political realm."  In the end, Judge Armstrong wrote that the court "lacked authority to second-guess the attorney general's legal strategy in the health care reform litigation, whatever the wisdom of his legal strategy."

The ruling is hardly a surprise.  The case was a stretch to begin with, and even the plaintiffs' requested relief wouldn't have changed the picture at the Supreme Court.  It was really about holding AG McKenna accountable for his statements, and his actions.  Judge Armstrong was clear: Any holding-to-account should go through the ordinary political process, not the courts.

SDS

May 29, 2012 in Cases and Case Materials, Commerce Clause, Courts and Judging, News, Opinion Analysis, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, May 10, 2012

In Memoriam: Nicholas deBelleville Katzenbach

Law students know him as the "Katzenbach" of Katzenbach v. McClung, 379 U.S. 29 (1964), the "Ollies BBQ case" upholding Congressional power under the Commerce Clause for the accomodations portions of the 1964 Civil Rights Act, and of Katzenbach v. Morgan, 384 U.S. 641 (1966), the "Puerto Rican voting case" upholding Congressional power under §5 of the Fourteenth Amendment for the Voting Rights Act of 1965.

738px-Nicholas_Katzenbach_at_White_House,_6_May_1968
Nicholas deBelleville Katzenbach served as Attorney General (and Acting Attorney General) in the LBJ Administration, litigating a host of civil rights cases. 

The NYT obituary highlights Katzenbach's actions during the civil rights era: "Perhaps his tensest moment came on June 11, 1963, when he confronted George C. Wallace in stifling heat on the steps of the University of Alabama in Tuscaloosa." 

The WaPo obituary places him at the center of government during a turbulent era: "Katzenbach’s time in government was like a history of government in the 1960s: The Bay of Pigs. The Cuban Missile Crisis. Integration of schools. The Warren Report. The Civil Rights Act. Vietnam."   It also links him as a source for Robert Caro's biography of LBJ.

The ACS Blog has a moving personal remembrance by Estelle Rogers. 

RR
[image: Katzenbach, 1968, via]

 

May 10, 2012 in Cases and Case Materials, Commerce Clause, Fourteenth Amendment, History | Permalink | Comments (0) | TrackBack (0)

Friday, April 20, 2012

Federal Cockfighting Prohibition Survives Commerce Clause and Equal Protection Challenge

In two opinions issued today - - - United States v. Lawson and United States v. Gilbert  - - - the Fourth Circuit has upheld the federal prohibition against animal fighting, 7 USC §2156.

The animal fighting statute provides  "it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture" and defines an "animal fighting venture" as

any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment . . . .

508px-Cock-fighting_match_by_John_KayThe defendants/appellants argued that the statute exceeded Congressional power under the Commerce Clause. 

The Fourth Circuit opinion in Gilbert, however, had "no difficulty concluding that Congress acted within the limitations established by the Commerce Clause in enacting the animal fighting statute."   Writing for a unanimous panel, Judge Barbara Milano Keenan stated that there was "a substantial relation to interstate commerce,"  unlike the statutes invalidated in United States v. Lopez (1995) and United States v. Morrison (2000).  Extensively discussing Congressional findings and legislative history, she concluded that "the link between animal fighting ventures and its effect on interstate commerce is not attenuated."  

Rather, the link is direct, because animal fighting ventures are inherently commercial enterprises that often involve substantial interstate activity. Thus, in contrast to the statute at issue in Lopez, there is no need to "pile inference upon inference" in order to establish the link between animal fighting and interstate commerce.

In sum, our task is simply to determine, with a presumption of constitutionality in mind, whether there is a rational basis for concluding that the practice of animal fighting, when conducted for "purposes of sport, wagering or entertainment," substantially affects interstate commerce.

The opinion rejected the argument that a defendant required scienter regarding the affect on interstate commerce, an argument that was expanded in the companion case of Lawson

In Lawson, the defendants/appellants added to the Commerce Clause argument an argument pursuant to the Fifth Amendment's equal protection component.  The focus was on the varying scienter requirements depending upon state law.  Under the animal fighting statute, if a defendant lives in a jurisdiction where gamefowl fighting is legal under the laws of that jurisdiction, the government must prove as an additional element of the offense that the defendant knew that at least one bird in the fighting venture traveled in interstate or foreign commerce.  In contrast, if a defendant lives in a jurisdiction that prohibits gamefowl fighting, the government need only prove that the defendant sponsored or exhibited an animal in an animal fighting venture, irrespective whether the bird traveled in interstate or foreign commerce.

In an opinion again authored by Judge Keenan, the panel applied rational basis scrutiny and found that the classification amongst residents of various states was rationally related to a legitimate purpose.  Although, as Judge Keenan noted, "cockfighting is illegal in all 50 States and the District of Columbia," it is legal in several United States territories such as Guam and Puerto Rico.  The increased statutory burden for prosecutions in "states" (including territories) merely reflects "the decision of Congress to accommodate principles of federalism, a concern that unquestionably is a legitimate governmental interest." 

Although not successful on the facial constitutional attack to the statute, the court did rule in Lawson that there were reversible errors in the trial.  The panel concluded that the government has failed to demonstrate that a juror’s misconduct did not affect the verdict with respect to the violations of the animal fighting statute and vacated the defendants’ convictions for violating the animal fighting statute, while upholding other convictions. 

These companion cases are carefully reasoned and nicely structured, with solid yet relatively concise analysis.  They take the Commerce Clause and equal protection arguments seriously, even if they are ultimately rejected. 

RR
[image: "Cock-fighting Match" by John Kay, circa 1826, via]

April 20, 2012 in Commerce Clause, Equal Protection, Federalism, Opinion Analysis, Sports | Permalink | Comments (0) | TrackBack (0)

Sunday, April 15, 2012

Elhauge: The Founders Supported Health Insurance Mandates

Einer Elhauge (Harvard) writes in The New Republic that the Founders supported health insurance mandates in his piece If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?--and that therefore so should the Court.

According to Elhauge, the Founders supported health insurance mandates twice.  Here's what he has to say:

In 1790, the very first Congress--which incidentally included 20 framers--passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen.  This law was then signed by another framer: President George Washington.  That's right, the father of our country had no difficulty imposing a health insurance mandate. . . .

[L]ater, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays.  And you know what this Congress, with five framers serving in it, did?  It enacted a federal law requiring the seamen to buy hospital insurance for themselves.  That's right, Congress enacted an individual mandate requiring the purchase of health insurance.  And this act was signed by another founder, President John Adams.

Moreover, Elhauge argues that because the founders approved of health insurance mandates, they must certainly be proper (as in Necessary and Proper) in the PPACA.

SDS

April 15, 2012 in Commerce Clause, Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 3, 2012

President Obama Comments on Health Care Arguments at Court

In case you missed it, here are President Obama's full comments on the ACA litigation in response to a reporter's question yesterday at a joint press conference, with President Calderon of Mexico and Prime Minister Harper of Canada:

With respect to health care, I'm actually--continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it's constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close call.

I think it's important--because I watched some of the commentary last week--to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

The law that's already in place has already given 2.5 million young people health care that wouldn't otherwise have it. There are tends of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.

Millions of senior are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that's just the part that's already been implemented. That doesn't even speak to the 30 million people who stand to gain coverage once it's fully implemented in 2014.

And I think it's important, and I think the American people understand, and I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.

Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint--that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step. . . .

As I said, we are confident that this will be over--that this will be upheld. I'm confident that this will be upheld because it should be upheld. And, again, that's not just my opinion; that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency.

SDS

April 3, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Federalism, News, Spending Clause, Supreme Court (US), Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2012

Skeptical Court Hears Arguments on Minimum Coverage, Individual Mandate

The Supreme Court today heard oral argument in the congressional authority portion of the challenge to the Affordable Care Act--whether Congress had authority under the Commerce Clause or its taxing power to enact the minimum coverage requirement.  Links to the audio files and transcript are here.

The questions at argument suggest that the case may turn on Chief Justice Roberts or Justice Kennedy (or both), both of whom, in different ways, appeared to give serious attention and thought to both sides of the argument.  But if they leaned, both also seemed to lean toward opponents of the provision.  For example, both (but Chief Justice Roberts perhaps more than Justice Kennedy) seemed much more skeptical of the government's argument than the opponents' argument.  And Justice Kennedy at one point suggested that the government face an even higher burden, given the "unprecedented" nature of the provision.  He also gave a short statement on the tradition in American law of not imposing a duty to act.

Justices Scalia and Alito seemed more set in their positions against the provision; and Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed more set in their positions in favor.  (Justice Thomas was silent, but his position (against) was never seriously in doubt.)

In short, this could be a squeaker one way or the other. 

Several themes caught the Court's attention:

Nature of the Market.  The Court spent time figuring out whether the relevant market is unique, because everyone will at some point enter it.  This question turns on what the relevant market is (see below) and, at least in part, on the issue of timing (see below). 

A Limiting Principle.  The Court looked for a limiting principle in the government's position--one that would distinguish the parade of horribles offered by the Justices, including everything from the government requiring us all to eat broccoli to the government requiring us all to buy cell phones to use for emergencies.  SG Verrilli came back with limiting principles distinguishing these examples, and Justice Kennedy seemed genuinely interested in them (or at least in hearing the states' responses to them).

The Relevant Market.  The Court spent considerable time on the familiar arguments about the relevant market--is Congress regulating the market for health insurance, or the market for health care (or health care payment)?  If the former, opponents argue that Congress is requiring something of people not yet in the market, and thus exceeding its authority under the Commerce Clause.  Chief Justice Roberts and Justice Kennedy both seemed open at least to hearing the government's argument that the minimum coverage requirement regulates the market for health care (not health insurance).

Timing.  Timing was an issue--whether Congress could regulate substantially before a person enters the market for health care, or whether Congress could only regulate at the point of entry, when, e.g., a person goes to the emergency room.  Everyone seemed to agree that Congress could regulate at the point of entry; the question is how far before that Congress can regulate--and whether the Commerce Clause has anything at all to say about this.

Congressional Creation of the Market (and the Problem).  Some expressed some concern that Congress created the interstate market and the very problem that it sought to address through the minimum coverage requirement by mandating that providers give free care to indigents.  Even if this is so, however, it's not clear, as Justice Breyer noted, why this would be a constitutional problem: Congress creates interstate markets all the time. 

Part of a Package.  The Court gave some attention to the government's argument that the minimum coverage requirement was necessary to make the guaranteed issue and community rating provisions work--an argument that draws on Gonzales v. Raich.  Opponents argued that Congress could have enacted these provisions without the minimum coverage provision; the government said that would have been ineffectual.

Policy.  There were a couple exchanges on pure policy, in particular other ways that Congress might have achieved its goals.  This shouldn't have any bearing on the constitutional question: congressional authority doesn't require something like a least-restrictive-means analysis.  If these exchanges should translate into constitutional law, however--if, e.g., the Court looks to alternatives to show why the minimum coverage provision exceeds congressional authority--the result could tighten congressional authority in general along the lines of a least-restrictive-means test.  This would mark an important change in the level of deference the Court usually gives to Congress in areas of congressional authority.

The Court spent more time on the Commerce Clause than on the taxing authority, but that's perhaps not a surprise.  The Justices' leanings didn't seem to change whether the questioning went to the Commerce Clause or to the taxing authority.

SDS

March 27, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, News, Oral Argument Analysis, Taxing Clause | Permalink | Comments (1) | TrackBack (0)

Few Clues, Con Law Issues in First Day of Health Reform Arguments

For those hoping to get an idea of where the Court is heading with the core constitutional issues in the ACA challenge, yesterday's oral arguments on the Anti-Injunction Act must have been a disappointment.  The Court yesterday drilled into the finer points of tax law--in particular, arguments whether the AIA is jurisdictional and, if so, whether it applies--but it gave few, if any, clues on the con law issues that will dominate oral argument today and tomorrow.  Yesterday's argument did suggest this, though: The Court will get to the merits now, and not punt based on the AIA.

The audio file and transcript are available here.

Justice Alito got right to a main con law point with SG Verrilli, asking how the government can consider the tax penalty a non-tax for AIA purposes but a tax for Article I purposes:

Justice Alito: General Verrilli, today you are arguing that the penalty is not a tax.  Tomorrow you are going to be back and you will be arguing that the penalty is a tax [to support the universal coverage provision of the ACA].

Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

General Verrilli: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax.  And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today.

Tomorrow the question is whether Congress has authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis.  Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

It's not clear whether this concern about the government's position on the tax penalty will have any constitutional traction today, however.  There's no requirement that a "tax" for taxing authority purposes must also be a "tax" for every other purpose.  The government's position may seem at odds with itself, but it probably doesn't matter for any constitutional reason.

Other Justices asked about those subject to the universal coverage requirement, but exempt from the tax penalty, particularly the poor, suggesting that the taxing authority alone isn't enough to support the universal coverage requirement for this population.  Several Justices were interested in whether the universal coverage requirement could be separated from the tax penalty, apparently setting up a line of inquiry today about whether the Commerce Clause alone could support the universal coverage provision for this population.  Again, though, it's not clear how much this will matter for arguments today: The Commerce Clause has always been a potentially independent authority--maybe even the best authority--to support the universal coverage provision for every population.

The Court asked some questions about whether the tax penalty raised revenue.  This line is almost certainly more important for AIA purposes than for taxing authority purposes, though.  And in any event, as SG Verrilli reminded the Court, the CBO has projected that the tax penalty will raise revenue. 

Finally, Justice Sotomayor asked a line of questions about state standing to challenge the universal coverage provision.  This line may come back today, but it's not clear from the brief exchange (on page 72 of the transcript) that it will get much play.

In short, argument yesterday gives few clues about the con law issues on display today and tomorrow.  At most, we have some likely themes for arguments today and tomorrow.  And we almost certainly have this: The Court is likely to address the merits now, and not punt under the AIA.

SDS

March 27, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 21, 2012

Court Allots Time in Health Care Reform Challenges

The Supreme Court issued an order today alloting oral argument time in the challenges to the Affordable Care Act--six hours of argument altogether.  Here's how the argument time will be shared:

March 26 and 27

  • On the Minimum Coverage Provision, the Solicitor General gets 60 minutes; respondents Florida, et al. get 30 minutes; and respondents National Federation of Independent Business, et al. get 30 minutes.
  • On the Anti-Injunction Act, the Court-appointed amicus gets 40 minutes; the Solicitor General gets 30 minutes; and the respondents get 20 minutes.

March 28

  • On Medicaid expansion, the petitioners get 30 minutes; and the Solicitor General gets 30 minutes.
  • On severability, the petitioners get 30 minutes; the Solicitor General gets 30 minutes; and the Court-appointed amicus gets 30 minutes.

SDS

February 21, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Federalism, News, Spending Clause, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Friday, January 6, 2012

Opening Briefs Filed in Health Reform Challenge

Parties today filed opening briefs in the cases challenging the federal Affordable Care Act, now before the Court.  We covered the Court's grant and argument schedule here.

The government filed its opening brief defending the minimum coverage provision, also called the individual mandate, under the Commerce Clause, the Necessary and Proper Clause, and Congress's taxing power.  As we might expect, the government emphasizes the congressional findings in the act and the data supporting its argument that everyone is in the relevant market.  It defends Congress's power to enact the provision principally as an essential part of a larger regulatory scheme:

The minimum coverage provision plays a critical role in that comprehensive regulatory scheme by regulating how health care consumption is financed.  It creates an incentive for individuals to finance their participation in the health care market by means of insurance, the customary way of paying for health care in this country, and it works in tandem with the Act's other provisions to expand the availability and affordability of health insurance coverage.  In particular, the minimum coverage provision is key to the viability of the Act's guaranteed-issue and community-rating provision.

Brief, at 17-18.

The government also defends the provision as a stand-alone regulation of commerce.  In particular, it argues that the election to self-insure is an economic act that Congress can regulate and hotly disputes the opponents' claim that some self-insured are non-cost-shifters, thus not subject to regulation:

The circumstances of this case well illustrate the flaws in respondents' premises.  At the outset of this litigation, respondent Mary Brown thought she had made a rational choice to forgo insurance . . . .  That belief proved incorrect.  Ms. Brown and her husband recently filed a petition for bankruptcy, and they list among their liabilities thousands of dollars in unpaid medical bills, including bills from out-of-state providers.

Brief, at 44.  The government forcefully challenges the claimed distinction between "activity" and "inactivity," and argues that the self-insured aren't "inactive" in this market, anyway.  Brief, at 47-52.

Also today the state petitioners and private petitioners filed their briefs on severability.  The arguments are very similar and familiar.  The states summarize:

Severability is a remedial inquiry that turns on legislative intent.  The ultimate question is not whether the balance of an act can function independently without an invalidated provision.  That is a necessary, but not sufficient, condition for preserving the balance of the statute.  The ultimate question is whether Congress would have enacted the statute without the invalidated provision.  Here, the answer is clear[: No.]

Brief, at 24.

Recall that the connection between the government's principal argument--that the minimum coverage provision is an essential part of the larger ACA--and the state and private petitioners' argument--that the minimum coverage provision is not severable--was a focus of Judge Vinson's ruling (holding that the minimum coverage provision exceeded Congress's authority, and that it was not severable, because the government said that it formed an essential part of the ACA) earlier in this litigation.

The briefs today break little new ground.  The fundamental arguments are familiar, even if they're sharpened, considerably.

SDS

January 6, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 8, 2011

D.C. Circuit Upholds Individual Health Insurance Mandate

A three-judge panel of the D.C. Circuit ruled today in Seven-Sky v. Holder that the so-called individual mandate in the federal Affordable Care Act is constitutional.

Judge Silberman and Judge Edwards agreed that the Commerce Clause authorizes Congress to enact the provision.  Judge Kavanaugh, dissenting, argued that the Anti-Injunction Act barred consideration of the claim.

Pieter_Huys_A_surgeon_extracting_the_stone_of_follyJudge Silberman wrote a notably concise and straightforward opinion for the court that dispelled the plaintiff's theory, which he called "novel," that Congress can't regulate inactivity.  Here's the gist:

To be sure, a number of the Supreme Court's Commerce Clause cases have used the word "activity" to describe behavior that was either regarded as within or without Congress's authority.  But those cases did not purport to limit Congress to reach only existing activities.  They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question--presented here--of whether "inactivity" can also be regulated.  In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .

Indeed, were "activities" of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such "activity."  For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future.  And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance.

Op. at 30-31 (emphasis in orginal; citations omitted).

The court similarly summarily dismissed the plaintiff's claims about federalism, intrusion into areas of traditional state concern, and the like.  Judge Silberman wrote that the idea that health care and health insurance are enclaves of traditional state concern is implausible, given the ubiquity of federal regulation in these areas.

Judge Silberman also mentioned something that we don't always see in these cases: Congressional acts are presumed constitutional.  He says that "this may be our most important consideration."

SDS

[Image: Pieter Huys, A Surgeon Extracting the Stone of Folly, Wikimedia Commons]

November 8, 2011 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)