Constitutional Law Prof Blog

Argument Preview: Court Again Considers Affordable Care Act, this time the entire thing

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court hears arguments today in the latest challenge to the Affordable Care Act--a case that could take down the entire Act. Here's my preview, from the ABA Preview of United States Supreme Court cases, with permission:

INTRODUCTION

The universal coverage provision is once again at the Supreme Court. This time, challengers argue that the provision is not a valid exercise of Congress’s taxing authority, because the provision lacks a critical feature of a “tax”: it cannot raise revenue for the government. (After all, the penalty for noncompliance is zero.) Moreover, challengers argue that because the universal coverage provision is so integrated with the rest of the Act, the provision’s invalidity also means that the rest of the Act must fall, too. But before we even get to these issues, the Court will first consider whether the challengers even have standing to bring their claims.

ISSUES

1. Do individual and state plaintiffs have standing to challenge the minimum-coverage provision in the Affordable Care Act?
2. Did Congress render the minimal-coverage provision unconstitutional by setting the tax penalty for individuals who lack health insurance to zero?
3. If the minimal-coverage provision is unconstitutional, is the rest of the Affordable Care Act unconstitutional, too?

FACTS

In 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA). The central goal of the Act was to extend quality and affordable health insurance to all Americans. In order to achieve this goal, the ACA included a host of new policies and regulations of the health-insurance market.

Three of those policies stand out. First, the “guaranteed-issue provision” prohibits health-insurance companies from denying coverage for pre-existing conditions. Second, the “community-rating provision” bars health-insurance companies from charging individuals higher premiums because of their health conditions. And third, the “universal coverage provision” (or “individual mandate”) requires all individuals to obtain health insurance, or to pay a tax penalty. 26 U.S.C. § 5000A.

The three provisions complement each other in order to achieve the goals of the Act. The guaranteed-issue provision ensures that all individuals have access to health insurance. The community-rating provision ensures that no individuals pay an outsized rate based on their health conditions. And the universal-coverage provision helps to ensure that health-insurance rates are affordable, by expanding the pool of insured individuals who pay into the health-insurance system, including healthy, but previously uninsured, individuals. These provisions form a “three-legged stool” that sits at the center of the Act.

But the ACA contains a web of other reforms and regulations, too, all designed to help extend quality and affordable health insurance to all Americans. Most notably, the Act provides federal financial incentives to states to expand their Medicaid programs; it expands access to employer-based health insurance; it creates health-insurance marketplaces ( “exchanges”) where individuals can shop for insurance; it provides subsidies to insurance companies and individuals to help keep rates affordable; it requires health-insurance plans to provide certain minimal benefits; it allows young adults to stay on their parents’ health insurance plans until age 26; and more. The ACA also contains a number of provisions that are designed to expand access to quality and affordable healthcare and improve public health outcomes, even if they are not directly related to the health-insurance market.

Opponents of the ACA immediately sued to stop the Act. They argued, among other things, that Congress lacked authority to enact the universal-coverage provision, and that the provision was therefore unconstitutional.

The Supreme Court disagreed. A sharply divided five-to-four Court ruled that while Congress could not enact the provision under its Commerce Clause authority, Congress could enact the provision under its taxing authority. NFIB v. Sebelius, 567 U.S. 519 (2012). In other words, the Court held that Congress could not require individuals to purchase health insurance as a free-standing regulatory mandate. But it said that Congress could impose a tax penalty against individuals who failed to comply with the provision.

In explaining why Congress could enact the universal coverage provision under its taxing authority, Chief Justice John Roberts, writing for the Court, noted that the tax penalty for noncompliance with the universal coverage had all the indicia of valid tax. He observed that the provision was located in the Internal Revenue Code, and that the amount of the penalty was “determined by such familiar factors as taxable income, number of dependents, and joint filing status.” Most importantly, he noted that the provision “yield[ed] the essential feature of any tax: It produce[d] at least some revenue for the Government.” As a tax, Chief Justice Roberts observed, the provision “is not a legal command to buy insurance,” but instead “a condition—not owning health insurance—that triggers a tax.”

Before and after the ruling, opponents of the ACA waged several attempts to revoke the Act through legislation. These efforts failed. But in 2017, in direct response to the ruling, opponents in Congress, through the Tax Cuts and Jobs Act (TCJA), succeeded in undermining the universal-coverage provision indirectly, by setting the tax penalty for noncompliance at zero dollars.

After Congress enacted the TCJA, two private individuals and a group of states sued the government, arguing that the TCJA rendered the universal-coverage provision unconstitutional. They claimed that by zeroing out the tax penalty for noncompliance, Congress transformed the universal-coverage provision from a valid tax (under NFIB) to an unconstitutional direct requirement to buy health insurance (also under NFIB). Moreover, they argued that because the universal-coverage provision worked in concert with the many other provisions of the ACA, the universal-coverage provision was not “severable” from the rest of the Act, and the rest of the Act must necessarily fall, too.

The government sided with the plaintiffs on the universal-coverage provision, but adopted a somewhat more nuanced position on severability. In particular, the government maintained that the universal-coverage provision was inseverable only as to the guaranteed-issue and community-rating provisions, and so only those two additional components of the ACA must fall. Because the government sided with the plaintiffs, a group of states and the District of Columbia, and later the U.S. House of Representatives, intervened to defend the Act.

The district court ruled for the plaintiffs. The court held that the universal-coverage provision was no longer valid as a tax, and that it was inseverable from the rest of the Act. The court struck the entire ACA, but stayed the ruling pending appeal.

The Fifth Circuit agreed that the universal-coverage provision was no longer valid as a tax, and therefore exceeded Congress’s authority. But it remanded the case to the district court for further consideration of the severability question. The appeals court instructed the lower court to give more attention to the legislative intent behind the TCJA, and to more carefully consider how particular portions of the ACA were linked to the universal-coverage provision.

This appeal followed.

CASE ANALYSIS

The case includes three distinct issues. Let’s take a look, one at a time. (The individual and state plaintiffs briefed a fourth issue—that the Court should uphold the district court’s nationwide injunction against the ACA—but the Court did not certify that question for appeal. We’ll refer to the parties defending the ACA, the states, the District of Columbia, and the U.S. House of Representative, together as the “petitioners.”)

Standing

In order to sue in federal court, plaintiffs must demonstrate that they have “standing.” This requires a plaintiff to show (1) that the plaintiff suffered a direct and concrete harm (2) that was caused by the defendant’s actions and (3) that would be redressed by the plaintiff’s requested relief in court. Only one plaintiff needs to demonstrate standing for a case to move forward, so this case could proceed if any of the individual plaintiffs or the states have standing.

The petitioners argue that the plaintiffs (now the respondents) lack standing. As to the individual plaintiffs, the petitioners claim that the universal-coverage provision, as altered by the TCJA, does not harm the plaintiffs, because it doesn’t require them to do anything, and because it doesn’t penalize them if they don’t buy insurance. The petitioners say that the zeroed-out universal-coverage provision simply gives individuals a choice—buy insurance or don’t—but that it doesn’t impose any consequence. They say that any harm is therefore self-inflicted, and doesn’t count for standing purposes. As to the states, the petitioners point out that the universal-coverage provision doesn’t even apply to them. Moreover, the petitioners maintain that they simply have failed to introduce any evidence that the zeroed-out universal-coverage provision itself inflicts any injury on them at all (even if other provisions of the ACA may increase their costs).

The plaintiffs argue that they have standing. The individual plaintiffs contend that they have standing, because the universal-coverage provision, even without a penalty, still requires them to purchase insurance—an actual harm for standing purposes. The states claim that the universal-coverage provision, even without a penalty, imposes several costs on them: increased enrollment in their Medicaid programs (because some individuals will enroll in Medicaid to comply with the universal-coverage provision); increased reporting and regulatory requirements under other provisions in the ACA; and increased costs in providing state employees with health insurance in order to comply with the ACA’s employer mandate. The states say that all of these costs count toward standing, notwithstanding the petitioners’ unduly narrow focus on the lack of particular harms that derive from the universal-coverage provision.

The government argues that the individual plaintiffs have standing. (The government does not make an argument one way or another about the states’ standing.) The government claims that the individual plaintiffs are injured by the ACA’s provisions that regulate health-insurance plans (the government calls these “insurance reform provisions”), because these provisions limit the individual plaintiffs’ choices and increase their costs in the health-insurance market. The government says that the individual plaintiffs can leverage this harm to challenge the universal-coverage provision, because the insurance reform provisions are inseverable from the universal-coverage provision, and all other portions of the ACA, because they, too, are inseverable. But the government maintains that the Court can only grant relief with regard to those provisions that actually injure the individual plaintiffs—relief that would redress only the individual plaintiffs’ harms. The government urges the Court to rule the entire Act unconstitutional, but then to remand the case “for consideration of the scope of appropriate relief redressing the plaintiffs’ injuries.”

Constitutionality of the Universal-Coverage Provision

The petitioners argue that the universal-coverage provision is still constitutional, even after Congress reduced the tax penalty to zero. They say that while the provision may encourage individuals to buy insurance, it doesn’t require anyone to do anything. They contend that this kind of action is well within Congress’s authority, either as a precatory statement, or as a suspended exercise of its taxing power (a placeholder provision in the law that is currently dormant, but that Congress could reactivate in the future). And they note that Congress did not revoke the provision; it simply zeroed out the penalty. The petitioners claim that the Fifth Circuit’s ruling to the contrary—that Congress transformed the universal-coverage provision into an invalid exercise of its Commerce Clause authority—flies in the face of NFIB itself, which says that the courts must “construe a statute to save it, if fairly possible.”

The plaintiffs and the government respond that the universal-coverage provision is no longer constitutional under Congress’s taxing authority, because it no longer raises revenue. As the government says, “Under NFIB’s functional approach, a statute that imposes no tax liability on anyone cannot be sustained as a tax.” The plaintiffs and the government say that the provision now reads most naturally to directly require individuals to buy insurance. They contend that this is exactly what the Court in NFIB ruled that Congress could not do.

Severability

The petitioners argue that even if the universal-coverage provision is no longer constitutional, it is severable from the rest of the Act. They note that when Congress zeroed-out the tax penalty in the TCJA, it left the rest of the Act in place. According to the petitioners, this shows that Congress intended only to remove the enforcement mechanism for the universal-coverage provision, but not to undermine the rest of the ACA. (Importantly, the petitioners focus on congressional intent in 2017, when it enacted the TCJA, and not 2010, when it enacted the ACA.) The petitioners maintain that, as a practical matter, the rest of the ACA has continued to operate since 2017, even without the tax penalty.

The individual and state plaintiffs and the government counter that the universal-coverage provision is inseverable from the rest of the ACA, because Congress enacted the provision as an essential part of the larger Act. They say that the universal-coverage provision is an indispensable part of the “three-legged stool” (along with the guaranteed-issue and community-rating provisions), and that the many and myriad other provisions in the Act cannot operate without the Act’s core three-legged stool. (In contrast to the petitioners, the individual and state plaintiffs emphasize congressional intent in 2010 and before the TCJA. They note, however, that the TCJA retained statutory findings as to how these provisions work together to achieve the goals of the Act.)

SIGNIFICANCE

This case is easily one of the most important cases of the Term. That’s because it tests the entire ACA—a sweeping piece of legislation that comprehensively restructured the health insurance market in the United States and brought quality and affordable health insurance to millions of individuals. A ruling for the challengers could mean the end for many or all of the ACA’s reforms, and could result in millions of individuals losing health insurance and other protections and benefits under the Act. Given that Congress has not offered a viable alternative to the ACA, a ruling for the challengers would likely return the health-insurance market to its pre-ACA status.

This is all the more significant in the middle of a pandemic, with an illness, Covid-19, that has infected millions of Americans and killed over 200,000. Infected individuals require various levels of health care, often quite significant, paid at least in part by their health insurance. Many previously infected individuals continue to show signs of longer-lasting, even chronic, conditions that will require future health care and health insurance. A ruling for the plaintiffs could affect these individuals’ health-insurance policies, and their ability to obtain quality and affordable health care for treatment. At the same time, lingering Covid-19-related conditions could drive up insurance rates or even prevent some previously infected individuals from obtaining new health insurance without the community-rating and guaranteed-issue provisions in the ACA.

But that’s only if the Court rules for opponents on each of the three issues in the case. Such a ruling is not at all certain. For starters, the Court could dismiss the case for lack of standing, vacate the lower courts’ rulings, and leave the ACA in place, exactly as it is. Despite the plaintiffs’ and the government’s arguments, and despite the lower courts’ rulings, the plaintiffs’ standing is tenuous. The universal-coverage provision doesn’t require any of the individual or state plaintiffs to do anything, and the states’ theory of standing hinges on other provisions of the ACA. It’s not at all clear that the Court will rule for the plaintiffs on standing. That said, the Court’s rulings on standing often seem to turn on the underlying merits. That may be true here, too: if a majority wishes to address the merits, the Court will likely find standing.

As to the universal-coverage provision, the Court seems primed to rule this unconstitutional. Remember that Chief Justice Roberts wrote for a bare majority in NFIB that the universal-coverage provision fell within congressional authority to tax, because it could raise revenue. But with the provision now zeroed-out, it is not at all clear that Chief Justice Roberts would vote to uphold it. Even if the other current justices who joined this portion of the NFIB ruling (Justices Breyer, Sotomayor, and Kagan) voted to uphold the provision, there may now be a five-justice majority against the provision. Since Justice Ruth Bader Ginsburg’s death, the Court has only eight justices. (More on this below.) A four-four tie would affirm the Fifth Circuit’s ruling striking the universal-coverage provision, but without setting a Supreme Court precedent.

As to severability, we just don’t know. To be sure, there is language in NFIB that suggests that the universal-coverage provision is inextricably linked to other provisions of the Act, particularly the guaranteed-issue and community-rating provisions. But that language does not necessarily foretell the Court’s ruling on severability. (The inextricability of the universal-coverage provision as a matter of policy may be different than the inseverablity of the provision as a matter of constitutional law.) If the Court were to strike the universal-coverage provision, it could (1) rule all of the Act severable (and strike only the universal-coverage provision), (2) rule only the guaranteed-issue and community-rating provisions inseverable (and strike only the three provisions), (3) rule certain other provisions of the ACA also inseverable (and strike only those provisions), or (4) rule the entire ACA inseverable (and strike the whole Act). Because the Fifth Circuit did not rule on the severability of specific ACA provisions—remember that the Fifth Circuit remanded the case for further consideration of severability—the Court may similarly kick the question back to the lower courts. (As described above, in standing, the government urges the Court to rule the entire Act unconstitutional, but to remand the case for a determination of which provisions harm the individual plaintiffs.)

The timing of the case, just a week after the 2020 presidential election, is critical. As this piece goes to print, President Trump has nominated Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the Court. Justice Ginsburg voted to uphold the universal-coverage provision in NFIB, and has consistently voted against other challenges to the Act. Judge Barrett, in stark contrast, is on the record opposing the Court’s holding in NFIB that Congress validly enacted the universal-coverage provision under its taxing authority. A Justice Barrett would almost certainly tilt the Court—with possibly a six-justice majority—further against the universal-coverage provision. We probably don’t have enough information to predict the way a Justice Barrett might rule on severability.

At publication, the Senate just began confirmation hearings. If the Senate confirms Judge Barrett before November 10, as now seems likely, she will sit for oral arguments and participate in the case. If the Senate does not confirm Judge Barrett before November 10, under ordinary practice, she won’t—unless the Court orders a reargument in order to include her. With the current eight-justice Court, a tie would simply leave the Fifth Circuit ruling in place.

One final point. Even if the Court were to rule for the plaintiffs on all the issues, Congress could probably restore much or all of the ACA, if it had the votes. Remember that the Court in NFIB held that Congress could enact the universal-coverage provision with a tax penalty under its taxing authority. That ruling still stands, for now, at least. Again, a Justice Amy Coney Barrett could move the Court against it.

How Could a Justice Amy Coney Barrett Affect the Affordable Care Act?

Looking for a plain-English explainer on how a Justice Amy Coney Barrett could affect the Affordable Care Act, or Obamacare, in a case scheduled for oral argument on November 10? Here you go:

 

 

Groups Sue to Stop Bump-Stock Ban

An individual and three gun-rights groups filed suit this week in the D.C. District to halt the government's new bump-stock ban. The lawsuit seeks to stop the Bureau of Alcohol, Tobacco, Firearms and Explosives from implementing and enforcing its final rule redefining "bump-stock-type" devices as "machineguns" under the National Firearms Act and the Gun Control Act and thus outlawing them.

The lawsuit alleges an illegally abrupt about-face on the definition (reversing the prior agency position that bump-stocks were not machineguns), without sufficient explanation, and a variety of "irregularities" in the rule-making process under the Administrative Procedure Act; and violations of the tax code.

It also alleges that the ban violates the Takings Clause, the Ex Post Facto Clause, and the Contracts Clause--all kind of a stretch, to be way too generous. (There's no Second Amendment allegation.)

Finally, the complaint alleges that acting AG Whitaker lacks authority to enforce the ban, because (wait for it) . . . his appointment was invalid.

Court Strikes the Entire Affordable Care Act

Judge Reed O'Connor (N.D. Tex.) today issued a sweeping and breathtaking ruling striking the entire Affordable Care Act. Judge O'Connor ruled that the individual mandate could no longer be supported by Congress's taxing power; that the individual mandate is not severable from the rest of the ACA; and that therefore the entire ACA must fail.

The case, Texas v. United States, arose after Congress passed the 2017 Tax Cuts and Jobs Act, which set the tax-penalty for noncompliance with the ACA's individual mandate at $0. Texas, a handful of other states, and a couple individuals sued, arguing that the individual mandate could no longer be supported by Congress's taxing power (as the Court held in NFIB), and, because it also couldn't be supported by Congress's Commerce Clause power (also as the Court held in NFIB), it was unconstitutional. Moreover, they argued that it was non-severable from the non-discrimination and community rating provisions of the ACA, and so therefore those provisions needed to fall, too.

The court agreed. Judge O'Connor ruled that the tax-penalty of the individual mandate could no longer be supported by Congress's taxing authority (in light of the $0 penalty in the 2017 tax act, which means that the penalty no longer raises money for the government, the touchstone for the taxing power). And because the mandate couldn't stand alone, without a tax penalty, because it can't be supported by the Commerce Clause, it is unconstitutional. But Judge O'Connor went a step farther and ruled that the individual mandate was non-severable from the entire ACA. The court looked to the statutory language (including congressional findings, which stated that the individual mandate was an essential part of the integrated ACA in order to ensure broad health insurance coverage and low costs), and the Court's ruling in NFIB to concluded that the entire Act was non-severable. As a result, the court struck the entire Act.

The ruling came as a declaratory judgment and summary judgment in favor of the plaintiffs, despite the fact that the plaintiffs originally sought only declaratory relief and a preliminary injunction. 

Unless stayed pending appeal (not in this ruling), the ruling gives cover to the government to start to dismantle the entire ACA (or at least those provisions that it hasn't already started to dismantle). 

Government Seeks to Strike Key Provisions of Obamacare

Steven D. Schwinn, John Marshall Law School

The federal government argued yesterday in the Texas Obamacare case that (1) Obamacare's individual mandate is now unconstitutional and (2) therefore the Obamacare pre-existing-conditions ("guaranteed issue") and "community rating" provisions must fall.

The filing (by the federal government as defendant in the case) is an unusual instance of the Justice Department refusing to defend a federal law in court. (Some states, led by California, have moved to intervene to defend the law.)

The filing is also notable for its attempt to pick off just three provisions of Obamacare--the individual mandate, the ban on pre-existing-conditions discrimination, and the community rating provision--while keeping the rest of the Act intact. (This contrasts with the plaintiffs' approach, which seeks to strike all of Obamacare. In this way, the federal government's position--as sweeping as it is--is nevertheless more modest than the position of Texas and the other plaintiffs in the case.)

Here's a summary of the federal government's argument:

1. The individual mandate as it stands effective January 2019 is unconstitutional. That's because Congress, in the Tax Cuts and Jobs Act, enacted earlier this year, eliminated the tax-penalty for not having health insurance beginning in January 2019. Without the tax-penalty, the individual mandate no longer can raise revenue for the federal government. If it can't raise revenue, it can't fall within Congress's power to tax. And, as the Court ruled in NFIB, it also can't fall within Congress's power to regulate interstate commerce. Therefore, the individual mandate, as it will read in January 2019, is unsupported by congressional authority, and is unconstitutional.

2. The requirements that health insurers accept individuals with pre-existing conditions (or the prohibition on discrimination by pre-existing conditions, the "guaranteed issue" provision) and that insurers charge rates within a particular range for a particular community (the "community rating" provision) are inseverable from the individual mandate. (This is the position that the federal government also took in defending the individual mandate in NFIB.) Here's why: Congress has authority under the Commerce Clause to prohibit discrimination and regulate insurance rates. But if Congress only enacted those provisions, without an individual mandate, rates would go through the roof. The only way to keep rates affordable is to require everybody (including people who are healthy now) to get into the insurance pool. That's the individual mandate. Thus, the individual mandate and the other two requirements go hand-in-hand in achieving Congress's goal under the ACA of keeping rates affordable. (The federal government also had a standing argument for why it's only challenging these two provisions: the individual plaintiffs in the case only alleged harms related to these two provisions, and not to the rest of Obamacare.)

3. Because the guaranteed-issue and community-rating provisions are inseverable from the unconstitutional individual mandate, they, too, must fall. But other key portions of Obamacare--including provisions "concerning various insurance regulations, health insurance exchanges and associated subsidies, the employer mandate and Medicaid expansion, and reduced federal healthcare reimbursement rates for hospitals"--are severable, and therefore can remain in place.

It's not clear from the filing whether and how this argument might affect other portions of Obamacare not mentioned, most notably the requirement that insurers allow parents to keep their children on their insurance until age 26.

The government opposed the plaintiffs' request for a preliminary injunction and instead argued that the court should issue declaratory relief, at least until January 2019.

Pacific Legal Foundation Asks Supremes to Review Origination Clause Challenge to Obamacare

Steven D. Schwinn, John Marshall Law School

The Pacific Legal Foundation filed a  cert. petition yesterday, asking the Supreme Court to review a D.C. Circuit ruling that the individual mandate in Obamacare didn't violate the Origination Clause. We posted on the D.C. Circuit ruling here.

The Origination Clause, Article I, Section 7, Cl. 1, says that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Because the Court upheld the individual mandate under Congress's taxing power, the logic goes, the ACA was a "bill for raising revenue." And while a bill that ultimately became Obamacare originated in the House, the Senate gutted that bill and replaced it with the ACA. The Pacific Legal Foundation argues that this violated the Origination Clause.

The D.C. Circuit flatly rejected the argument. It said, in short, that the individual mandate wasn't a "bill for raising revenue" for Origination Clause purposes, even if Congress enacted it under its taxing authority.

Here are the QPs in the cert. petition:

1.    Is the tax on going without health insurance a "Bill[] for raising Revenue" to which the Origination Clause applies?

2.    Was the Senate's gut-and-replace procedure a constitutionally valid "amend[ment]" pursuant to the Origination Clause?

 

Supreme Court Decides Raisin USDA Program is an Unconstitutional Taking

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court's opinion in Horne v. Department of Agriculture (USDA)
decisively declares the USDA's "California Raisin Marketing Order," under which a percentage of a grower's crop must be "put in reserve" is unconstitutional under the Fifth Amendment's Takings Clause. 

This regulatory program, under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., regarding raisins, is similar to other USDA programs and thus could have wide application. 

By resisting the program on behalf of "farmers," the Hornes have become "outlaws" or heroes of sorts. This is the second time that the Hornes have been to the Supreme Court: Recall that in a brief opinion in June 2013, the Court reversed the Ninth Circuit and held that the Hornes did state a claim for a taking. 

Today, again reversing the Ninth Circuit, the Court held that a taking did occur and that the Hornes were entitled to just compensation under the Fifth Amendment.  Only Justice Sotomayor dissented from this conclusion, but Justices Breyer, Ginsburg, and Kagan did not join Chief Justice Roberts's opinion for the Court regarding the determination of "just compensation."

Relying on a Magna Carta provision regarding corn as well as on colonial history, Chief Justice Roberts's opinion for the Court concludes that the Fifth Amendment's Taking Clause applies with equal force to personal property as to real property.  Any distinction between real and personal property might be relevant in a regulatory takings case, but the Court stressed that this is a "clear physical taking": "Actual raisins are transferred from the growers to the Government."  (Whether this happens in a physical seizure was debated in the contentious oral argument and made another appearance in a to-and-fro between the Court's opinion and Sotomayor's dissent).  For the Court, growers thus lose "the entire 'bundle' of property rights in the appropriated raisins."  Dissenting, Justice Sotomayor disagrees that it is the entire bundle and thus disputes this conclusion.  Given this physicality, it is irrelevant for the Court that the USDA could achieve the same ends through a regulatory taking (such as prohibiting the sale):

A physi­cal taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).

The Court also rejected the notion that because the USDA program reserved a contingent interest in the raisins for the growers that this relieved the government duty to pay just compensation. 

The Court also found that the USDA mandate to reserve raisins as a "condition" for engaging in interstate commerce effected a per se taking.  In reaching this conclusion, the Court rejected the Ninth Circuit's observation that the growers could grow other crops or use the grapes differently - - -

“Let them sell wine” is probably not much more comfort­ing to the raisin growers than similar retorts have been to others throughout history.

The Court also reached this conclusion by distinguishing other takings cases and other products. Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984) is inapplicable because "raisins are not dangerous pesticides; they are a healthy snack."  Leonard & Leonard v. Earle, 279 U. S. 392 (1929) is likewise inapposite because "Raisins are not like oysters: they are private property— the fruit of the growers’ labor—not “public things" such as oysters that belonged to the state under state law.

The majority [corrected] of the Court determined that the "just compensation" owed to the Hornes is the fair market value of the raisins, the subject of the fine imposed by the USDA: $483,843.53.   Justice Breyer (and Ginsburg and Kagan), disagreeing with this conclusion, would remand the matter for a determination.  It is not that Justice Breyer disagrees that this was the amount of the fine, but that he disputes that this is the actual fair market value absent the taking.  In other words, the raisin reserve program operated to increase the cost of raisins.  Thus, without the program benefit, the raisins in reserve may have been worth much less that the amount fined, or even, Justice Breyer suggests, nothing at all.  He contends that the question of evaluation was not properly briefed before the Court.  For the Chief Justice, however, "This case, in litigation for more than a decade, has gone on long enough."

[image: 1916 California Sun Maid Raisin Recipe Book via]

Latest Challenge to Obamacare

Steven D. Schwinn, John Marshall Law School

Ohio AG Mike DeWine this week sued the federal government for levying an assessment against the state under the ACA's Transitional Reinsurance Program. DeWine argues that the federal assessment on the state violates the text of the ACA (which, he says, doesn't authorize the government to levy this assessment on the states), the Tenth Amendment, the anti-commandeering principle, and intergovernmental tax immunity.

Under the Transitional Reinsurance Program, the federal government collects a contribution from health insurers and self-insurers (or their administrators) in order to off-set the costs of high-risk individuals in the individual health insurance market and thus to stabilize premiums in the individual market. Part of the proceeds also goes to the general fund of the Treasury. The contributions are in effect from 2014 through 2016.

AG DeWine claims that the federal government wrongfully assessed his state $5.3 million. (Ohio self-insures its employees.) He claims that the ACA didn't authorize this, and that it violates various federalism principles in the Constitution:

71. Had Congress applied this tax directly against State and local governments, which it did not, such a tax would violate the "residuary and inviolable sovereignty" that the United States Constitution leaves to the several States in our federalism system . . . .

72. Especially here, where the tax is not imposed as a "user fee" on States or local governments and where the tax is specifically designed to raise more revenue for the federal government than will be allocated to the reinsurance program (with certain amounts of the tax revenues indeed designed as monies that "may not be used for the program established under this section," 42 U.S.C. Sec 18061(b)(4)), such a direct tax against the State and its instrumentalities would breach our federal Constitution's vertical separation of powers.

73. The federal government lacks authority under the United States Constitution to levy such broad-based, revenue-generating taxes against the States and their instrumentalities.

Supreme Court Declines to Disturb Employer Mandate

The Supreme Court today declined to review a Fourth Circuit ruling upholding the Affordable Care Act's employer mandate.  Our post on the Fourth Circuit ruling is here.

The order rejecting cert. means that the Fourth Circuit ruling stays on the books and that the Supreme Court won't take on the employer mandate (now, and likely ever).  The Obama administration delayed implementation of the mandate (sparking bills in Congress and lawsuits to override the delay); it's now scheduled to go into effect in 2015 (and not January 1, 2014, as the law seems to require).

Recall that the Fourth Circuit ruled in Liberty University v. Lew that Congress had authority under both the Commerce Clause and the Taxing Clause to impose a mandate on employers to provide health insurance to employees.  The case was notable, because it held that Congress had authority under the Commerce Clause to impose the employer mandate, even though five justices on the Supreme Court ruled in NFIB v. Sebelius that Congress lacked authority under the Commerce Clause to impose the individual mandate.  The Fourth Circuit said that in enacting the employer mandate Congress wasn't creating commerce to regulate it (as Chief Justice Roberts wrote in NFIB about the individual mandate).  Instead, the Fourth Circuit said that the employer mandate was just another federal regulation on the terms and conditions of employment between an employee and an employer, who is already in interstate commerce.

How the President Should Deal With the Debt Limit

Neil H. Buchanan (GW) argues at the Jurist.org that the President should just pay the nation's bills if Congress fails to increase the debt ceiling.

Buchanan summarizes an argument that he and Michael Dorf made over three articles last year in the Columbia Law Review--one, two, and three--that the President should do the least constitutional damage if ever faced with a trilemma involving taxing, spending, and a debt ceiling that don't add up. 

Buchanan and Dorf argue that Congress would create this trilemma if it failed to increase the debt limit: Congress would have authorized a particular level of taxation; Congress would have authorized a higher level of spending; and Congress would have capped the debt limit at a level lower than authorized spending.  All three are congressional acts that the President must enforce, but if the President enforces any two, he necessarily violates the third.

So: what to do?

Buchanan and Dorf argue that the constitution requires the President to take the action (1) that exercises as little legislative power as possible and (2) in a way that allows Congress to later enact legislation that can undo his actions, if it so desires.

Those two criteria mean that the President should, even must, violate the debt limit.  That's because violating the debt limit (but complying with the taxing and spending measures passed by Congress) is the choice that's least legislative in nature, and the one that Congress can later undo (by enacting taxing and spending measures that add up). 

Buchanan explains why this solution is novel--but also why it's right:

Bizarrely, the shared assumption among Republicans and Democrats alike has been that the president must simply default on the government's spending obligations, if he is ever faced with a trilemma. . . .

The reason that is so bizarre is that it simply presumes that duly-enacted spending laws can be ignored by the president.  They cannot.  We are not taking about choosing to increase or decrease future levels of spending, after all.  We are, instead, contemplating having the president refuse to honor legal claims for payment from the federal government, choosing not to pay the government's legal obligations, in full, on the date that they are due.

IRS Rules it will Recognize All Same-Sex Marriages

In a 15 page ruling today, Revenue Ruling 2013-17, the IRS clarified that it will recognize

 a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages.

The Department of Treasury also issued a  press release.

The Revenue Ruling applies and extends the Supreme Court's decision in United States v. Windsor in late June.  Essentially, the IRS ruled that interpreting "husband" and "wife" as gender-neutral terms was consistent with Windsor and a contrary interpretation would "raise serious constitutional questions."

As for domicile, the IRS ruled that the controlling domicile was the place where the marriage occurred.  While they are constitutional issues, the IRS also relied upon the practical:

Given our increasingly mobile society, it is important to have a uniform rule of recognition that can be applied with certainty by the Service and taxpayers alike for all Federal tax purposes. Those overriding tax administration policy goals generally apply with equal force in the context of same-sex marriages.

The ruling specifically excludes

individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and the term “marriage” does not include such formal relationships.

 

RR
[image: United States Treasury Building via]

Fourth Circuit Upholds Employer Mandate in Affordable Care Act

A three-judge panel of the Fourth Circuit upheld the employer mandate in the Affordable Care Act.  The ruling in Liberty University v. Lew deals a significant blow to challengers of the Act's requirement that large employers provide affordable health care coverage to full-time employees and dependents or pay a fine.  Unless and until it's appealed to the full Fourth Circuit and the Supreme Court--and unless and until one or the other reverses--the ruling upholds the employer mandate.

The ruling is notable, because it says that Congress had authority under the Commerce Clause to enact the employer mandate.  (Recall that five Justices on the Supreme Court said last summer in National Federation of Independent Business v. Sebelius that Congress exceeded its authority under the Commerce Clause to enact the individual mandate.)  What's the difference?  See below.

The case is a hold-over from the Supreme Court's ruling last summer in National Federation of Independent Business v. Sebelius.  Recall that the Court in that case held that the Anti-Injunction Act did not bar a the suit challenging the individual mandate, and that the individual mandate was a valid exercise of Congress's taxing power.  The Court also remanded Liberty University to the Fourth Circuit for a ruling consistent with NFIB.  (The Fourth Circuit previously held that the Anti-Injunction Act deprived it of jurisdiction to rule on the merits and dismissed the case.)

The Fourth Circuit followed NFIB's lead and ruled that the employer mandate (like the individual mandate in NFIB) was not a "tax" for purposes of the Anti-Injunction Act.  (The court also ruled that Liberty University had standing to lodge its pre-enforcement challenge of the employer mandate, and that the individual named plaintiffs had standing to challenge the individual mandate.)

On the merits, the court ruled that the employer mandate is a valid exercise of Congress's Commerce Clause authority.  (Recall that five members of the Supreme Court in NFIB said that the individual mandate exceeded Congress's Commerce Clause authority, even if it fell within Congress's taxation power.)  What's the difference between the employer mandate and the individual mandate?  In short, unlike individuals who have not purchased health insurance, employers operate in interstate commerce, and health insurance is part of their employees' compensation package, which itself is regulable under the Commerce Clause.  The Fourth Circuit explained:

To begin, we note that unlike the individual mandate . . . the employer mandate does not seek to create commerce in order to regulate it.  In contrast to individuals, all employers are, by their very nature, engaged in economic activity.  All employers are in the market for labor.  And to the extent that the employer mandate compels employers in interstate commerce to do something, it does not compel them to "become active in commerce," [NFIB, emphasis in original]; it merely "regulate[s] existing commercial activity," id., i.e., the compensation of employees . . . .

Further, contrary to Liberty's assertion, the employer mandate does not require employers to "purchase an unwanted product." . . .  Although some employers may have to increase employee compensation (by offering new or modified health insurance coverage), employers are free to self-insure, and many do.

(Interestingly, the court dropped a footnote, note 7, that says, "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court."  We covered that topic here.)

Following NFIB, the court also upheld the individual mandate under Congress's taxing power, and applied that ruling to uphold the employer mandate under Congress's taxing power.

The court also rejected the plaintiffs' religion claims--based on the First and Fifth Amendments (equal protection) and the Religious Freedom Restoration Act.

SDS

Daily Read: Linda Sugin on the Constitutional Tax Avoidance of the Roberts Court

The Roberts Court majority is avoiding taxes: not the income taxes revealed by the returns due today, April 15, but the constitutional scrutiny that taxes deserve.

Law Prof Linda Sugin (pictured left), in her article The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, draft available on ssrn, analyzes two cases that are not typically paired. 

First, she considers National Federation of Independent Business v. Sebelius, in which, as she describes it, Justice Roberts' "newly muscular tax law saved Obamacare from near death at the hands of the Commerce Clause." 

Second, she examines Arizona Christian Schools v. Winn, in which, as dhe describes it, the majority   "adopted a novel judicial approach to targeted tax benefits" and denied standing in an Establishment Clause challenge.

Sugin argues that these two cases, taken together, "challenge the revenue-raising role of the tax law, and give it tremendous potential to overcome constitutional obstacles that legislatures face," including state legislatures.  She contends that the cases "introduce confusion into the law of taxation by incentivizing the adoption of more non-revenue policy in the tax law, and blurring the conceptual structure of taxation."  She claims that "these decisions undermine the important work on tax reform and fiscal responsibility that other branches of government are doing."  Ultimately, she argues that these decisions portend that "policies administered through the tax law" will be deemed constitutional "even where those same policies would be unconstitutional if administered as either direct regulation or appropriated spending."

Worth a read and not only on "tax day."

RR

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

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

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

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

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

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

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