Archive for July, 2011

Judge Niemeyer’s dissent in Joyner v. Forsyth County argues that the Board’s prayer policy does not violate the Establishment Clause because the Board allows “all and any religious leaders to deliver invocational prayers of their own composition before Board meetings and has sought proactively to be inclusive.”

The principal division between the majority and the dissent is over whether including “sectarian references” in prayers creates an Establishment Clause problem. Judge Niemeyer argues that the majority’s position “entangles the legislative bodies in determining what form of prayer is sectarian or offensive to given members of the public.” He asserts that “we should not constitutionally mandate that any government body supervise the content of prayer given by private individuals.” Moreover, this supervision will be difficult to carry out (and for courts to supervise), because “there is no clear definition of what constitutes a ‘sectarian’ prayer.” Under the majority’s approach, a prayer that invokes the name of Jesus is sectarian, but “Lord of [l]ords,” and “King of [k]ings” are not — even though, Judge Niemeyer writes, “those phrases refer to Jesus in the New Testament.”

Judge Niemeyer’s conclusion is worth quoting in full:

I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect—allowing the prayers of each to be spoken in the religion’s own voice—we must be glad to let it be. The ruling today intermeddles most subjectively without a religiously sensitive or constitutionally compelled standard. This surely cannot be a law for mutual accommodation, and it surely is not required by the Establishment Clause.

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When it comes to interpreting the Constitution on the United States Court of Appeals for the Fourth Circuit, Judge Wilkinson and Judge Niemeyer do not often engage in such sharply divergent analyses as are apparent in today’s opinions in Joyner v. Forsyth County. At issue is the constitutionality under the Establishment Clause of the prayer policy of the Forsyth (NC) County Board of Commissioners, as implemented during 2007 and 2008. In an opinion authored by Judge Wilkinson and joined by Judge Keenan, the Fourth Circuit finds that Forsyth County has violated the Establishment Clause. Judge Niemeyer dissents.

Snippets from the majority opinion after the jump. Portions of the dissent and issue analysis in later posts.


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The Fourth Circuit affirmed the denial of relief to a student alleging that punishment imposed by school officials for her internet speech violated various provisions of the Constitution. Judge Niemeyer wrote the opinion in Kowalski v. Berkeley County Schools, which was joined by Judges Duncan and Agee.

Summary and snippets after the jump.


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The Fourth Circuit has affirmed the suppression of drugs seized during a traffic stop on I-95 in Maryland. Senior Judge Hamilton wrote the opinion in United States v. Digiovanni, which Judges Motz and Diaz joined.

A few tidbits from the opinion are after the jump below. From the non-specialist point of view, there seem to be a few take-aways for civilian motorists and law enforcement alike. For civilian motorists: (1) pack your shirts in a garment bag, or you might be suspected of being a drug trafficker; (2) don’t keep your car too clean, or you might be suspected of being a drug trafficker; (3) never off-handedly say “oh boy” while answering an officer’s question; (4) when asked if you use marijuana, don’t say “I never smoked marijuana in my life. It makes me sleepy.” Most important, don’t agree to transport over 34,000 oxycodone pills from Miami to Boston. The take-away for law enforcement is to get consent faster, running through questions after plugging in license information.


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Cardinal George of Chicago is one of the Catholic Church’s sharpest thinkers and clearest voices on the relationship of law and culture in the United States today. I am working my way through his new book, God in Action: How Faith in God Can Address the Challenges of the World, and will occasionally post excerpts.

When American law was mostly common law, as it was when Holmes addressed his Boston listeners, its relationship to culture was harmonious, because the law was almost wholly derivative from the culture. The common law was conceived of as the distillation of shared practice, of culturally common activities. The law was not any judge’s say-so or even the say-so of the judiciary as a body; judicial declarations counted, rather, as so much evidence of the law. The law remained the common practices of the people, discerned more or less adequately by judges but not made or determined by them.

. . .

We live in an age of statutes, administrative rules, executive orders, treaties, and judicial decisions conceived differently—more creatively and more like legislation—than was the common law. Law characteristically is, for us, the purposive ordering of norms, first imagined, debated, and then given life, once and for all, on a certain date, down at city hall, up in the statehouse, or in a court in Washington, D.C. All these forms of law, these enactments, bind by dint of someone’s or some institution’s authority, not by dint of prior custom and practice. The modern relationship between law and culture is therefore fragile, more complex and problematic.

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On July 11, a closely divided Fourth Circuit issued an en banc decision in Aikens v. Ingram. (Apologies for the delay in posting. I was vacationing in the northwestern reaches of the Fourth Circuit’s jurisdiction when the decision came down.)

The ruling affirms the dismissal of a former military reservist’s claim for relief from a prior judgment under Rule 60(b)(6). This provision comes at the tail end of Rule 60(b), which sets forth various circumstances that justify relief from a final judgment. After five subsections identifying particular circumstances, (b)(6) authorizes relief from a final judgment “for any other reason that justifies relief.” The varying interpretations of this capaciously worded procedural provision provide insight into the state of the Fourth Circuit as President Obama’s appointees (Davis, Keenan, Diaz, and Wynn) continue to settle in. (Note: Judge Wynn did not participate in the decision.)

The en banc ruling largely tracks the panel opinion. Judge Niemeyer authored that opinion, joined by a senior Sixth Circuit judge sitting by designation. Judge King dissented.

The principal en banc opinions had the same authors in the same arrangement. Judge Niemeyer wrote for the majority, to affirm, joined by Traxler, Wilkinson, Shedd, Duncan, Agee, and Diaz. Judge King wrote the lead dissent,to vacate and remand, joined by Motz, Gregory, Davis, and Keenan. There were two additional opinions: a concurrence by Judge Diaz (joined by Shedd, Duncan, and Agee), and a solo dissent by Judge Davis.

The voting distribution reveals some crossover from what one might predict based solely on perceived ideology as measured by the appointing President. If Obama-appointed Judge Diaz had voted to vacate and remand instead of affirm, the court would have been split 6-6. (And if Judge Wynn had participated and also voted to vacate and remand, the outcome would have gone the other way.) As it is however, Judge Diaz voted to affirm. The substantive and tonal differences between Judge Diaz’s concurrence and Judge Davis’s dissent are notable.

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Judge Wilkinson authored an opinion for a three-judge panel of the Fourth Circuit (Wilkinson, Shedd, Norton by designation) affirming the grant of qualified immunity to Maryland prison employees in Braun v. Maynard. The court holds that strip searches following the positive alert of “a portable ion scanning machine capable of detecting minute amounts of controlled substances” do not violate clearly established federal law implementing the Fourth Amendment.

One interesting tidbit is Judge Wilkinson’s citation of the Supreme Court’s decision in City of Ontario v. Quon, which the opinion invokes as support for the proposition that “[i]t is often difficult for judges, let alone prison officials, to apply Fourth Amendment concepts to cases involving novel technology.” Justice Kennedy’s opinion for the Court in Quon does have a lengthy discussion of Fourth Amendment problems raised by new technology. This discussion drew the ire of Justice Scalia, who thought the majority’s “excursus on the complexity and consequences” of answering a question about the correct application of the Fourth Amendment to new technology not only “unnecessary” but also “exaggerated.” Justice Scalia wrote: “Applying the Fourth Amendment to new technology may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)–or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions–is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse of disregard of duty.”

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A three-judge panel of the Fourth Circuit (Wilkinson, King, Agee) issued an unusual ruling in an unpublished per curiam opinion in Hyman v. Keller. North Carolina appealed the grant of a writ of habeas corpus to Terrence Hyman, currently serving a sentence of life without parole for the murder of Ernest Lee Bennett Jr. Rather than affirm or reverse, the Fourth Circuit stayed the appeal out of deference to a potential state resolution.

The district court granted the writ upon concluding that Hyman had been denied the right to counsel because Teresa Smallwood, a lawyer defending Hyman in his murder trial, also had represented a key trial witness, Derrick Speller. In the course of her representation of Speller, Smallwood had a conversation with Speller, Hyman argued, in which Speller identified a different man as the shooter.

As it came to the Fourth Circuit, the case had a complicated procedural history. North Carolina argued, among other things, that Hyman failed to exhaust his claim. The district court had rejected North Carolina’s exhaustion argument.  Instead of resolving North Carolina’s argument that the district court erred, the Fourth Circuit stayed North Carolina’s appeal to allow a North Carolina court to address the parties’ arguments in the first instance. As mentioned at the outset, this is an unusual disposition.

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“What is unconsciously motivated is not for that reason inaccessible, secret, arbitrary, with us being little balls tossed about by dark forces below that are not us and alien to us. Nor, in law, is the power of a judge, who is one of us and like us, therefore a blind impact from the unknown. We blend into the semiconscious, the subconscious, and the unconscious.

“The whole person acts and speaks. In talk and action and in writing one obtains evidence of what one thinks, oneself, as a whole, evidence that one then interprets, and not against some independently accessible conscious intent but as one would interpret any authentically meant writing. Words and means of expression come to mind. Then one sees them.

“So with the legal decision maker. She decides, or concludes she has decided. There is a motion of her mind. What does she decide? Happily she must justify her decision. She writes and looks, and the whole may surprise the part and summon her in a different direction. When she publishes, she reads what she writes in company. Where is her power, the power she has in and of herself as a judge? Her power beyond the case is in her text. And if there is an appeal in the case, to judge the judge’s text, her power even over the case itself is limited, to the degree she has genuinely sought what she truly thinks–which seeking is itself a limit on her power as she comes to the decision that is reviewed.”

Joseph Vining, From Newton’s Sleep IV.21, pp. 188-89.

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A short introduction to my Stanford Law Review piece on jurisdiction over Virginia’s challenge to the individual mandate: Health Care: Why Jurisdiction Matters | University of Richmond School of Law Alumni Magazine: Summer 2011.

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From Pope John Paul II’s 2000 address to the International Union of Catholic Jurists: “Catholic jurists do not possess a particular form of knowledge:  their Catholic identity and the faith that motivates them do not provide them with specific knowledge from which non-Catholics would be excluded. What Catholic jurists and those who share the same faith possess is the awareness that their work, passionately supporting justice, equity and the common good, belongs to the plan of God, who asks all human beings to recognize one another as brothers and sisters, as children of one merciful Father, and who gives them the mission of defending every individual, especially the weakest, and of building a society on earth that conforms to the requirements of the Gospel.”

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The Fourth Circuit was the first federal Court of Appeals to hear oral arguments in cases challenging the minimum essential coverage provision (a/k/a the individual mandate) in the Affordable Care Act. On May 10, a three-judge panel heard arguments in two cases: Liberty University v. Geithner and Virginia v. Sebelius. The first is an appeal from a decision of Judge Moon in the Western District of Virginia dismissing the challenge to the individual mandate for failure to state a claim. The second is an appeal from a decision of Judge Hudson in the Eastern District of Virginia granting summary judgment to Virginia on the ground that the individual mandate is unconstitutional (but severable from the remainder of the Act). Here are a few things to look for when the Fourth Circuit rules:

The Bottom Line: Will the court reach the merits of the individual mandate’s constitutionality in both cases? Much of the oral argument in Virginia v. Sebelius focused on alleged jurisdictional defects. The individual mandate imposes an obligation on individuals but not on states. Virginia traces its right to challenge the mandate to state legislation declaring (with some minor exceptions) that no Virginia resident shall be required to obtain or maintain insurance. Legislatures in several other states have passed similar laws. The federal government’s appeal in Virginia v. Sebelius squarely presents the question whether such legislation authorizes states to sue the federal government for a federal court ruling addressing the conflicting commands of state and federal law.

If the Court Gets to Yes, How: Although everything is speculative until the court rules, the panel at oral argument appeared more likely than not to uphold the individual mandate against the constitutional challenge that its enactment exceeded Congress’s limited and enumerated powers.  If the panel decision does uphold the mandate’s constitutionality, the grounds on which it does so could matter. The federal government has invoked not only Congress’s authority under the Commerce Clause and Necessary and Proper Clause, but also Congress’s power to tax. Thus far, no federal court has upheld the mandate as an exercise of the taxing power. Some courts have rejected the federal government’s reliance on the taxing power, while others have found it unnecessary to reach the issue after concluding that Congress’s power to regulate commerce was sufficient. Although most of the merits discussion at the oral arguments focused on the Commerce Clause and the Necessary and Proper Clause, the judges on the panel also expressed interest in analyzing the parties’ arguments about the extent of Congress’s taxing power. A desire to reach the merits of the taxing power arguments may explain an order for supplemental briefing by the parties to address a statute that bars certain challenges to the assessment of taxes.

Percolation Effects: One of the reasons that the Supreme Court does not get immediately involved in issues that arise in multiple lawsuits spread across the country is that the percolation of cases in the lower courts can help to clarify, and perhaps resolve, some issues. This process can aid the Supreme Court’s ultimate resolution by sharpening the arguments and developing the implications of various lines of reasoning. It will be interesting to see whether the Sixth Circuit’s opinions in the mandate litigation (Thomas More Law Center v. Obama) have informed any of the Fourth Circuit’s opinions, and, in turn whether the Fourth Circuit’s opinions inform the Eleventh Circuit’s and, ultimately the Supreme Court’s. (Of course, there is always the chance that the Eleventh Circuit’s opinions will come down before the Fourth Circuit’s in which case it will be interesting to see whether the Eleventh Circuit’s opinions influence the Fourth Circuit’s.)

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I’ve opened up this space where I have been trying out some thoughts, in the thought of possibly drawing others toward them at some point. No point in waiting any longer. So, if you walk through the open door, welcome!

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NFL win for Clement over Olson

Today’s Eighth Circuit ruling reversing the injunction against the NFL lockout was a win for Paul Clement over Ted Olson in a clash of legal titans.

Clement and Olson are on the opposite sides of the debate over the constitutionality of defining marriage as between a man and a woman (though not on opposite sides of the same case, as in the NFL dispute). Clement represents the Bipartisan Legal Advisory Group defending the constitutionality of the federal Defense of Marriage Act. Olson represents the plaintiffs challenging California’s Proposition 8.

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Suppose a contemporary national majority were to favor same-sex marriage, and the Supreme Court were to hold that a federal-law limitation of “marriage” to the union of opposite-sex individuals violated the Equal Protection component of the Due Process Clause of the Fifth Amendment. Would it be fair to describe that holding as counter-majoritarian? Not with time slicing. Without time slicing, the ruling would obviously be counter-majoritarian.

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Enforce but give up?

Marty Lederman asserts that there is ample historical precedent for what he describes as the Obama Administration’s “enforce-but-do-not-defend practice” with respect to DOMA § 3. But the label seems inapt. The Obama Administration is not simply refusing to defend. It is actively opposing a motion to dismiss. This appears consistent with various administrations’ positions in other cases. To describe the practice as a simple refusal to defend, however, significantly understates both the practical and legal import of what the administration is doing.

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DOMA straddle in N.D. Cal.

Marty Lederman points to a DOJ brief opposing the constitutionality of DOMA § 3 recently filed in the Northern District of California. The DOJ argues for heightened scrutiny while conceding that “binding authority of this circuit [i.e., the Ninth Circuit] holds that rational basis review applies to sexual orientation classifications.” (p. vi) Moreover, the DOJ brief states that, if rational basis is the appropriate standard, “as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard.”

The brief is more political than legal. A district court simply has no authority to ignore binding circuit precedent. Honest-broker lawyering would have resulted in a different brief — acquiescing in dismissal while explaining that the federal executive would seek to change binding circuit precedent. Such an approach would parallel the executive’s own approach to enforcement. Apparently, the executive believes that its role constrains it to continue enforcing a law that  it believes to be unconstitutional. Yet the executive invites an inferior court in a co-equal branch of the federal government to ignore its own role.

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Jonathan Adler and Ilya Somin argue that Judge Sutton’s opinion upholding the individual mandate against a facial challenge is inconsistent with the Supreme Court’s decisions in United States v. Lopez and United States v. Morrison. More particularly, Adler and Somin view Lopez and Morrison as establishing some type of overbreadth doctrine for Commerce Clause challenges. They reason that the provisions held unconstitutional in both cases included within their reach activities that Congress could have permissibly regulated if it had legislated more narrowly. Yet Congress did not legislate more narrowly, and the Court held the entire challenged provisions unconstitutional. From these results, Adler and Somin conclude that constitutionality under the Commerce Clause is all or nothing, on a provision-by-provision basis.

Here is Somin:

Sutton’s analysis rests on a misinterpretation of the plaintiffs’ argument. The key point is not that a given plaintiff hasn’t engaged in economic activity, but that the regulation imposed by Congress does not require any such activity as a prerequisite for covering them. The fact that some of the individuals covered by the mandate could be regulated by a more narrowly drawn law (e.g. — one that covered only people who had already purchased health insurance) does not mean that the present mandate is constitutional as applied to them. Their having previously engaged in economic activity that Congress could regulate is purely coincidental. It is not the reason why the mandate applies to them, under the terms of the law itself.

And Adler:

The traditional test for a facial challenge is whether there is any set of circumstances in which the statute’s application would be constitutional.  As Lopez shows, the proper way to apply this test is not to ask whether the statute reaches otherwise reachable conduct — commercial gun possession, the purchase of insurance, etc.  Rather, the question is whether the class of activities expressly subject to regulation — that is, the conduct which brings an individual within the scope of the statute at issue — is itself within the scope of the Commerce power.  As the Supreme Court has reiterated time and again (albeit mostly in cases upholding statutes against Commerce Clause challenge), what matters is what Congress did, not the specific conduct of the individual challenging the statute’s constitutionality.  This is why Lopez prevailed.

These criticisms neglect the “essential part of a larger regulatory scheme” prong of Commerce Clause analysis. That prong provides that Congress can regulate some activity not otherwise within its reach if that regulation is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated” (Lopez). To demonstrate the unconstitutionality of a provision, then, it is not enough to say that it is overbroad, that is, that the provision encompasses conduct not otherwise within the reach of Congress.

After Gonzales v. Raich, one of the confusing features of Lopez is that the provision at issue there seemingly could have been constitutional not only if it were drawn more narrowly, but also if it were drawn more broadly (as Justice O’Connor argued in dissent). As Adler argues in the piece linked to his post, “[a] broad regulatory scheme that regulates economic matters in some regard will be constitutional in its entirety” (p. 764). Similarly, Somin observes in the piece available for download here, that Raich makes it “possible for Congress to shoehorn virtually any regulation of local noneconomic activity by designating it a component of a broad regulatory framework” (pp. 516-17).

Suppose Congress had included the ban on gun possession in school zones within a larger regulatory scheme, and Lopez made the identical argument for unconstitutionality.  That argument could be characterized as an as-applied challenge seeking a carve-out–precisely the sort of argument that Raich foreclosed with respect to the CSA.

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According to Wikipedia, the Roach Motel is a type of trap for cockroaches that lures them into a sticky substance in which they become immobilized. According to Randy Barnett, Judge Sutton’s view of facial challenges in Thomas More Law Center v. Obama commits Judge Sutton to viewing individuals who possess health insurance as roaches in the sticky sweet trap of federal power–“[h]aving once voluntarily chosen to get insurance, they can be mandated never to stop.”

Suppose one agrees with Professor Barnett that citizens are not to be treated like cockroaches. What does that imply for the validity of the requirement in federal law that individuals obtain or maintain a minimum level of health insurance? Nothing, one would think. And so it is. Whether an individual has previously purchased health insurance would seem to be irrelevant to whether the federal government can require that individual to be insured. Judge Sutton does not necessarily disagree with this proposition. Indeed, it is the activity/inactivity distinction–which Judge Sutton rejects–that makes one’s prior purchase of health insurance relevant to the constitutional analysis.

Judge Sutton undermines the activity/inactivity distinction by arguing that it is within Congress’s power to regulate those who possess health insurance that they previously purchased. At most, then, the plaintiffs’ theory of invalidity shows that the mandate is overbroad. Yet Judge Sutton concludes that the form of alleged overbreadth–a flawed generalization that groups together all of the uninsured–is not of the sort that violates the Commerce Clause. He then invokes, as a fallback argument, the idea that facial invalidation would be inappropriate “even if the Constitution prohibit Congress from regulating all of the self-insured together.” Again, this is a fallback argument. The principal argument is that Congress may permissibly regulate all of the self-insured together.

Because the turn to facial challenge doctrine is a fallback argument, it is descriptively inaccurate for Barnett to assert that Sutton’s view of facial challenges “allowed him to avoid the hardest issues posed by the mandate: compelling citizens into a market – here the insurance market – who are not currently in that market.” Judge Sutton faced that issue, and resolved it against the challengers.

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In a prior post, I argued that Judge Sutton’s analysis in Thomas More Law Center v. Obama reveals how the challengers to the individual mandate rely on a theory of invalidity that has a flaw similar in structure to the challenge rejected by the Supreme Court in Gonzales v. Raich. If accepted, the challengers’ Congress-can’t-force-you-into-commerce theory would demonstrate that the requirement to possess insurance or pay a penalty is beyond Congress’s power only with respect to some individuals who do not already possess the requisite kind of insurance. The challenged statutory provision, however, applies both to those who already possess the requisite kind of insurance and also to those who do not. The Congress-can’t-force-you-into-commerce theory of invalidity can therefore be understood as a carve-out theory of invalidity.

Randy Barnett argues that Judge Sutton’s use of facial challenge doctrine to reject the plaintiffs’ challenge depends on logic that would eliminate any “justiciable way to adjudicate whether Congress has exceeded its Commerce Clause powers.” Barnett is right that this would be “a radical conclusion” that the Supreme Court would not adopt. But he is wrong that Judge Sutton’s analysis leads to this conclusion. The problem is not the absence of any way to challenge the constitutionality of the individual mandate, but rather the difficulty of winning on such a challenge given the applicable substantive law.

A key question in determining the success of a facial challenge (understood here as a challenge that seeks to demonstrate the unconstitutionality of a particular statutory provision in all its applications) is the applicable substantive law. Judge Sutton’s analysis reveals the plainitffs’ theory of constitutional invalidity to be an overbreadth theory akin to one rejected by the Supreme Court in Raich.

The nature of the plaintiffs’ Commerce Clause overbreadth theory can be revealed by contrast with First Amendment overbreadth doctrine. That doctrine can ground a successful facial challenge to a law that reaches both protected and unprotected speech. If the unconstitutional sweep of the law is too broad relative to the constitutional sweep of the law, then the law may not be validly applied to any speech. The law is completely unconstitutional.

One feature of Commerce Clause doctrine that should be particularly clear after Raich is that the relationship between the valid reach of legislative power considered, first, on an application-by-application basis and, second, on the basis of the reach of a statute as a whole, is the opposite of First Amendment overbreadth doctrine. Whereas overbreadth allows one to reason from the invalidity of some applications to the invalidity of all applications, Commerce Clause doctrine allows one way of reasoning from the validity of the set of all applications to the validity of some subset of applications.

Consider Raich itself. The Court analyzed the CSA as comprehensive drug-control legislation to regulate the interstate market in a fungible commodity, and refused to excise an individual component of that larger scheme. The validity of the CSA’s application to the challengers’ intrastate, non-commercial activity followed from the fact that Congress’s inability to reach the challengers’ activity “would leave a gaping hole in the CSA.” In other words, the Supreme Court in Raich viewed Congress’s inability to apply its law to a subset of activities that would be outside Congress’s power when considered apart from a comprehensive regulatory scheme as a reason for concluding that Congress did have the authority to reach those activities as part of a comprehensive regulatory scheme.

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Ilya Somin, Jonathan Adler, and Randy Barnett have criticized Judge Sutton’s reliance on the distinction between facial and as-applied challenges in upholding the minimum-essential-coverage provision of the Affordable Care Act. Before I had the chance to read Judge Sutton’s opinion carefully, my initial reaction was also critical of this aspect of Judge Sutton’s opinion. After Raich, it seemed difficult to conceive of a non-facial analysis of constitutionality under the substantial effects prong of the Commerce Clause, when Congress seeks to justify an exercise of legislative power as an essential part of a larger scheme that regulates interstate commerce.* It now seems to me, however, that Judge Sutton’s analysis reveals how the challengers to the individual mandate make a similar mistake to one made in Raich, although in a different guise.

The challengers in Raich did not challenge Congress’s authority to enact any particular provision of the Controlled Substances Act, but argued that “the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause.” The Court rejected this attempt to carve out a subset of the regulated activities as beyond Congress’s power. The Court drew from Wickard the principle that “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” As applied to the challengers’ activities in Raich, the Court held that “Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.” This reasoning clearly forecloses any attempt to view the challengers’ as-applied claim apart from the reach of the statute more broadly; Congress could reach intrastate activity as part of “comprehensive legislation to regulate the interstate market in a fungible commodity.” Confronted with comprehensive drug-control legislation, the Court concluded that it would “refuse to excise individual components of that larger scheme.”

The Court distinguished the challenge in Raich from those in Lopez and Morrison on the ground that the parties in those earlier cases “asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety.” This distinction is “pivotal,” said the Court in Raich, because “we have often reiterated that ‘[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.'” (Raich, quoting Perez, quoting Wirtz.)

The “individual mandate” challengers learned this lesson from Raich and challenged an entire statutory provision: 26 U.S.C. 5000A. But here’s where it gets interesting. The theory of invalidity that they advance–at least so far as Judge Sutton understood that theory–is a carve-out theory like that advanced in Raich. The terminological distinction between “individual mandate,” as the challengers call the provision, and “minimum essential coverage provision,” as the government refers to it, does much of the work. The “mandate” is to possess insurance of a certain sort. A penalty attaches to the failure to possess insurance. This requirement, by its terms, applies both to those who already have the requisite insurance (and are required to maintain it) as well as those who do not have the requisite insurance (and are required to obtain it). The challengers’ theory, as Judge Sutton understands it, aims only at the latter category. Although the challengers do not purport to seek “to excise, as trivial, individual instances of the class” of regulated activities, their theory of invalidity reaches only a subset of the regulated class of activities.

Put another way, the challenged provision does not simply require those without insurance to go out and buy it. It also requires those with insurance to keep it. And Judge Sutton concludes that it is not beyond Congress’s power to require those with insurance to maintain it. It is only at this point that the distinction between facial and as-applied challenges does any work in Judge Sutton’s analysis. The work it does is this: Because a facial challenge must fail if the challenged provision is constitutional in some applications, a theory that (at most) demonstrates the invalidity only of some applications of the individual mandate must result in rejection of the facial challenge. On this approach, a reviewing court need only determine whether the facial challengers’ theory would demonstrate the unconstitutionality of a provision across the board if accepted. If it would not do so, then the facial challenge must be rejected.

*(That analysis may be better conceptualized as an inquiry into whether a particular exercise of legislative power is necessary and proper to a regulation of interstate commerce, but the difference is unimportant for the facial vs. as-applied analysis, so we can leave this distinction to the side for now.)

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