Kennedy will disappoint, but whom and how? (This is no way to run a country.)

Justice Kennedy’s vote on the constitutionality of the individual mandate is bound to be a disappointment regardless of how he votes.

Two decades ago, it was widely expected that he would vote to overturn Roe v. Wade and return state abortion legislation to rational basis review. And he did vote that way . . . only to later switch and vote another way. If Justice Kennedy follows his Casey pattern, that means he will have voted at conference to hold the individual mandate unconstitutional, only to switch his vote some time during writing. That would be a disappointment to many.

But Justice Kennedy’s Casey vote did not work out quite as he anticipated, as his dissent in Stenberg v. Carhart and his opinion for the Court in in Gonzales v. Carhart bear out. Moreover, Justice Kennedy may still be nursing resentment over his Flipper reputation from October 1991 Term (which brought both Casey and Lee v. Weisman). Perhaps he learned from Casey that he should not flip his vote in cases of that magnitude. And if that was his takeaway from Casey for the individual mandate ruling, then he not only voted at conference to hold the individual mandate unconstitutional, but also did not switch to the other side during writing.

Yet Justice Kennedy’s contemplation of a 5-4 split down the lines of partisan appointments may have brought to mind Bush v. Gore . . . leading to no change at all. For Justice Kennedy simply cannot understand why anyone would question the Court’s leanings and rulings from that case alone. In his view, the Bush v. Gore majority was–obviously–only deciding based on its best understanding of the law. And even if Justice Kennedy had worries about public perception, the unpopularity of the individual mandate (which is much less popular now than Al Gore was then) provides some insulation for the Court.

For all these reasons, it will be most interesting to see if Justice Kennedy thinks that stare decisis means the same thing for Raich as it did for Roe.

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Please don’t Boerne-ize the Necessary & Proper Clause

The Supreme Court has had a hard time improving on Chief Justice Marshall’s McCulloch v. Maryland formulation of the doctrinal test for Congress’s power under the Necessary and Proper Clause. At one point in time, the Court even adopted that formulation as its test for the reach of Congress’s power under Section 5 of the Fourteenth Amendment. In City of Boerne v. Flores, however, the Court tried to do better in its Section 5 jurisprudence. That was a mistake. Boerne‘s congruence and proportionality test is a “flabby test” that is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” as Justice Scalia reiterated in a solo concurrence just last week.

Based on this week’s oral arguments on the constitutionality of the “individual mandate,” at least some of the Justices appear willing to formulate a new doctrinal test for what counts as a “Proper” law under the Necessary and Proper Clause. As they were in Boerne, the Justices are on a search for a limiting principle on Congress’s power. In their attempt to not Garcia–ize the Commerce Clause and the Necessary and Proper Clause, let us hope that they do not Boerne-ize those powers instead.

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The healthcare litigation: facial vs. as-applied challenges, severability, the Anti-Injunction Act, judicial restraint, and state resistance

The papers from the “Everything But the Merits” symposium on the healthcare litigation held at the University of Richmond School of Law last November (11/11/11) will be published in the March 2012 issue of the University of Richmond Law Review. Draft versions of several are now available on SSRN. The paper with the most immediate relevance to the ongoing litigation is Edward Hartnett’s, which addresses the topic of facial and as-applied challenges.

Here are links to the currently available SSRN versions of the papers:

A. Christopher Bryant (Cincinnati), Constitutional Forbearance

Tobias A. Dorsey (Federal Practice), Sense and Severability

Edward A. Hartnett (Seton Hall), Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and Affordable Care Act

Elizabeth Weeks Leonard (Georgia), The Rhetoric Hits the Road: State Resistance to Affordable Care Act Implementation

Kevin C. Walsh (Richmond), The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code

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The Anti-Injunction Act and section 5000A of the tax code (aka “the individual mandate”)–my new paper addressing the puzzle of congressional inactivity

I recently posted to SSRN a draft version of the paper that arose out of my participation in the “Everything But the Merits” symposium on the healthcare litigation held at the University of Richmond School of Law last November (11/11/11). The papers from the symposium will be published in the March 2012 issue of the University of Richmond Law Review.

The title of my paper is The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code.

Abstract below.

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Health care cases scheduled for Supreme Court’s November 10 conference

Lyle Denniston reports at SCOTUSBlog that five of the six health care cases have been scheduled for discussion at the Supreme Court’s November 10 conference. Just in time for our November 11 “Everything but the Merits” Conference at UR Law School . . .

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Constitutional litigation as rebellion?

Virginia filed a federal lawsuit challenging a federal statute as unconstitutional and seeking to vindicate a state statute. It takes a special perspective for someone to view that federal-court filing as some type of indicator that the Commonwealth may have forgotten that the Civil War is over. Linda Greenhouse appears to have that special perspective, as her most recent Opinionator column reveals. (By the way, does the New York Times have a macro such that any story it runs on the Fourth Circuit must contain something about how the court sits “in the heart of the old Confederacy”?)

My problem is not with the substance of Greenhouse’s claim that Virginia lacked standing to sue the federal government. My problem is with the framing and tone.  Reading Greenhouse’s column reminded me of reading portions of Justice Kennedy’s opinion in Gonzales v. Carhart, 550 U.S. 124 (2007). In these writings of Greenhouse and Kennedy, quasi-constitutional moralism not only distracts from the soundness of the underlying constitutional determination, but also provides unnecessary fodder for disagreement.

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If it looks to you like I’m left leaning, perhaps you’re the one who needs to drink his V-8

One of the top stories currently running at The American Spectator is “Obamacare’s Last Best Hope”, by David Catron. The bio describes Mr. Catron as a “health care revenue cycle expert” who blogs at Health Care BS (which is devoted to “cleaning the Augean stables of the health care debate”). Mr. Catron may know much more about health care finance than I do, but he is confused about the federal tax Anti-Injunction Act (“AIA”) and why one might be willing to conclude that it blocks pre-enforcement challenges to the individual mandate.

Let’s begin with the paragraph that drew my attention:

Some left-leaning legal scholars see a ray of hope in the Liberty v. Geithner ruling because Judge Diana Motz, the Clinton appointee who resurrected the tax issue, invoked the Anti-Injunction Act (AIA). AIA forbids legal challenges to taxes before they go into effect and the IRS has tried to collect them. Because the mandate doesn’t take effect until 2014, experts sympathetic to “reform” hope this new perspective will cause the Supreme Court to put off its encounter with ObamaCare. According to Kevin C. Walsh, who teaches law at the University of Richmond, “[T]he Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate.” And, considering the denunciations to which the Court was subjected pursuant to Bush v. Gore, the justices may indeed be reluctant to join the judicial fray in 2012.

It’s peculiar that I am the only “legal scholar” mentioned in this paragraph about “left-leaning legal scholars” who are “sympathetic to ‘reform'” and hope that the AIA “will cause the Supreme Court to put off its encounter with ObamaCare.” I will leave to others to judge whether I am “a left-leaning legal scholar.” I think it’s safe to say, however, that Mr. Catron’s sole reason for tagging me as such is because I think the Fourth Circuit got the AIA question right in Liberty University v. Geithner. For better or worse, Mr. Catron can infer whatever he likes from my view on this jurisdictional question. But he should at least get that view right. The post of mine that he links in his piece advocates congressional action to lift the AIA bar for these challenges. That’s not the kind of move one advocates while simultaneously hoping that the Supreme Court will “put off its encounter with ObamaCare.” As I explained in that same post (which Mr. Catron apparently has not read): “A legislative fix to the Tax Anti-Injunction Act can eliminate a jurisdictional barrier that presents a serious possibility of causing extensive delay. Congress can and should get rid of that barrier and clear the way to prompt Supreme Court resolution of the constitutional challenges to the individual mandate.”

Mr. Catron concludes by observing that the Department of Justice ” must make the case that, the President’s prevarications notwithstanding, the mandate is indeed a tax. If they can get over that bar, plus make the sale on Judge Motz’ AIA theory, there is a chance that ObamaCare and its mandate will survive — until November 6, 2012.” This analysis confuses two issues: (1) whether the mandate is a tax under the Constitution; and (2) whether a challenge to the mandate is barred by the federal tax Anti-Injunction Act. It may be counter-intuitive to treat these as two different issues, but sometimes the law is counter-intuitive. And on this point, the law is clear. The AIA can bar a pre-enforcement challenge to the mandate even if the monetary exaction for non-compliance is a “penalty” rather than a “tax” under the Constitution.

Rather than speculating about political or ideological leanings, Mr. Catron may wish to get straight on the law and consider the possibility that some of us who think that the Fourth Circuit was right about the AIA hold that view because a close look at the relevant legal authorities suggests as much. An analysis along those lines wouldn’t make for good copy or allow one to suggest that the President is a liar, but it may actually be true and help people understand the issues.

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Alternative state standing theory # 2: the individual mandate is inseverable from provisions (such as changes to Medicaid) that directly affect the States

This post continues consideration of the alternative state standing theories advanced in Florida v. HHS but not yet ruled on by any federal court. An earlier post addressed the states’ lead standing theory, which is based on expenditures expected to result from the choices of some individuals to comply with the mandate by enrolling in Medicaid.

The States’ second standing theory relies on the asserted inseverability of the individual mandate from other statutory provisions that directly affect the States. Their Eleventh Circuit brief argues:

[T]he States have standing because they have alleged that the  individual mandate renders the entire Act invalid on non-severability grounds. The  States have standing to raise that argument so long as they allege that any of the  Act‘s provisions causes them injury in fact, as such injury would be remedied by a  declaration that the Act is invalid. See Brock, 480 U.S. at 684 (adjudicating claim that entire statute was invalid as a result of unconstitutional legislative veto  provision, where plaintiffs alleged injury based on other portions of the statute). The States have plainly demonstrated injury in fact caused by the Medicaid and employer mandate reforms, and therefore have standing to seek invalidation of the Act on the ground that the individual mandate is unconstitutional.

In short, the States attempt to use inseverability to leverage their standing to challenge a part of the Act that does apply to them into standing to challenge a part that does not.

I have argued in my Eleventh Circuit amicus curiae brief and in my draft law review essay that this attempted use of inseverability doctrine is unprecedented and impermissible. I will not repeat those arguments word for word here, but instead set forth some of the key moves in the analysis.

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Some early observations about Florida v. HHS

The Eleventh Circuit’s 2-1 ruling holding the individual mandate unconstitutional, but severable from the remainder of the Affordable Care Act, should come as no surprise to close observers (or careful auditors) of the oral arguments in the case. In fact the ruling was portended by Judge Hull’s first question (if memory serves correctly), which was not about the constitutional merits, but about severability. In any event, here are some initial reactions:

(1) This decision makes Supreme Court review inevitable, most likely in this case.

(2) While most have speculated that the Supreme Court will decide the constitutionality of the individual mandate by the end of June 2012, this decision makes that timing prediction significantly more likely, almost a virtual certainty.

(3) The ruling has no implications for the jurisdictional obstacles facing Virginia in Virginia v. Sebelius. The Eleventh Circuit ruled that it did not need to decide whether the States were proper challengers to the individual mandate because at least one party — a private individual — did have standing.

(4) The ruling likely has very limited implications for the constitutional merits of the Fourth Circuit’s rulings in Liberty University v. Geithner or Virginia v. Sebelius. Given the tenor of oral argument in the Fourth Circuit, it is widely expected that the Fourth Circuit will rule against the constitutional challenge. The Fourth Circuit opinions will have the benefit of being able to address both the Sixth and Eleventh Circuits’ analyses, if the judges so choose.

(5) If the Eleventh Circuit’s ruling were to be affirmed by the Supreme Court, Congress would need to respond. The Eleventh Circuit’s severability analysis (which I believe reaches the right result) creates a terrible scenario for health insurers. The guaranteed issue and community ratings provisions remain, but the individual mandate is no longer operative to force healthy people into the insurance pool. Congress could legislate around this difficulty in a number of ways. The important practical point for present purposes, though, is that Congress would have to do something. Because the results of congressional action are so unpredictable, expect America’s Health Insurance Plans and the Chamber of Commerce (which filed an amicus curiae brief arguing for inseverability) to ratchet up pressure on the severability analysis. As AHIP made clear in its amicus curiae brief (filed in the Fourth Circuit), either (i) a decision upholding the individual mandate as constitution, or (ii) a decision holding the individual mandate unconstitutional and inseverable from the insurance-related provisions, would be preferable to the Eleventh Circuit’s holding of unconstitutional but severable.

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Health Care: Why Jurisdiction Matters | University of Richmond School of Law Alumni Magazine: Summer 2011

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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