Author: Edward Hartnett


Realism, severability, and inertia

There was a fair bit of discussion at the severability argument about injecting a dose of realism into the Court’s severability doctrine, taking into account the difficulty of overcoming Congressional inertia. 

Any decision finding that any part of a statute is unconstitutional means that the law will not operate as Congress intended.  And no matter what decision the Court makes on severability, Congress has the power to correct, either by repealing provisions the Court leaves standing or re-enacting provisions that the Court refuses to sever from the unconstitutional provision.  So, in a sense, what we are really talking about is the establishment of a default rule, that is, what happens in the absence of action by Congress to fix the statute after a judicial decision finding part of the statute unconstitiutional. 

But that default rule matters a lot because of Congressional inertia.  So if the Court wants to move in the direction of realistically considering Congressional inertia, perhaps it should be considering what decision on severability is most likely to elicit a response that could overcome Congressional inertia. Viewed from that perspective, wouldn’t the position of the amicus – severing the individual mandate from the rest of the statute so that everything survives except the mandate – fit the bill?  Insurers would presumably kick and squawk, but aren’t they precisely the ones in the best position to overcome Congressional inertia?


Invalidating Entire Acts: Marbury and Missouri

As someone who had argued for the Court to follow Judge Sutton’s lead and sever any unconstitutional applications of the individual mandate from the constitutional applications of the individual mandate – thereby rejecting a facial challenge to the individual mandate – it was disappointing to hear the Court taking quite seriously the possibility of refusing to sever anything – thereby concluding that nothing in the entire ACA survives.

I’ve been thinking what such an approach would have meant in the earliest big cases in which the Supreme Court held that Congress had violated the Constitution.

How about Marbury?  There, the Supreme Court concluded that the mandamus provision of section 13 of the Judiciary Act of 1789 violated the Constitution.  Imagine if it had concluded that this constitutional flaw meant that nothing in the Judiciary Act of 1789 survived.  That would mean that the lower federal courts created by that Act would have to close up shop.  It would also mean that the Supreme Court itself would have to do the same, because while the Constitution requires the creation of a Supreme Court, without the Judiciary Act of 1789, there would have been no basis on which to organize one – including such basic matters as how many justices would hold the Court.

But that’s different.  After all, the mandamus provision of section 13 was a relatively minor part of the Judiciary Act of 1789, not the heart of the Act. 

So how about the next big one, Dred Scott.  There, the Supreme Court concluded that section 8 of the Act of March 6, 1820 – the section of the Missouri Compromise that banned slavery north of 36 degrees, 30 minutes — was unconstitutional.  Surely the limit on the spread of slavery was at the heart of the Act, no?    And wouldn’t this be a perfect example, at least for those opposed to the spread of slavery, where half a loaf (a new slave state without the geographic limit on slavery) would be worse than nothing?  Imagine if this meant that the entire Act of March 6, 1820, was unconstitutional: Goodbye State of Missouri.


Paul Clement and Justice Kennedy

Early on, there were predictions that the government would win by a lop-sided margin.            

When I read Paul Clement’s brief, I began to predict that the individual mandate would not survive.  It is masterful, weaving together themes of federalism and liberty, revealing the dangers to accountability of allowing regulated industries to be bought off by mandating purchases of their products, and pointing to other markets that share features with the health (insurance) market.  He was masterful again at oral argument, giving what Tom Goldstein at scotusblog calls “the best argument I’ve ever heard.”  Indeed, I had the impression that if he were not there yesterday, things would be looking better for the government.

His linking of federalism and liberty plays right into Justice Kennedy’s wheelhouse, as Kennedy’s questioning made clear.  And the accountability point seemed to trouble Kennedy, too, as he mused:

“If the Congress has alternate means, let’s assume it can use the tax power to raise revenue and to just have a national health service, single payer.  How does that factor into our analysis?  In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power it’s using and use the correct power.  On the other hand, it means that since . . . Congress can do it anyway, we give a certain amount of latitude.  I’m not sure which way the argument goes.”

Kennedy may yet be persuaded that the health care and health insurance markets are unique (noting that “the young person who is uninsured in uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries”).  But Chief Justice Roberts and Justice Alito – Justices that some predicted would uphold the mandate — didn’t seem to be buying that argument.  To the contrary, their questions about cell phones for emergency services and burial insurance pushed against the uniqueness of health care and health insurance.

I was never persuaded by some recent claims that Justice Scalia would somehow be in play, so his hostility to the mandate was not surprising.  Interestingly, he suggested tying this case to the anti-commandeering principle of New York v. United States and Printz.  Just as those cases rely on the sovereignty of the states as an element of the constitutional structure, so, too, he suggested reliance in this case on the limited nature of federal power as an element of the constitutional structure, noting that the 10th Amendment reserves power not simply to the states, but to the people.

I was somewhat surprised at how little help the Justices who seem to accept the government’s position provided in building a bridge for Justice Kennedy.  There was certainly some, but Justices Breyer and Sotomayor talking about the political safeguards of federalism was hardly calculated to bring Kennedy to their side.  I was briefly heartened to hear Justice Kagan mention that this is a facial challenge, and that perhaps the case would look different if it were an as-applied challenge by Christian Scientists, but this was hardly enough to vindicate my hope that the Court might follow Judge Sutton’s lead and uphold the mandate on its face, while leaving open as-applied challenges.

A couple of thoughts on other posts:

I was gratified to see Jennifer’s “cookie” suggestion, because I had tumbled to the same possibility last night. 

But I am not persuaded by Nicole’s argument that the challenger’s concession that mandating the purchase of insurance at the point of purchasing medical care would be constitutional shows “a complete lack of understanding about how insurance works.”  Sure, it wouldn’t make sense to have people buy insurance “at the moment of the cancer treatment, or the auto accident, or the home fire.”  But most medical care is far more routine – and far less expensive – than these calamities.  If the person who shows up for such routine care (the check-up, the eye exam, the dental exam, the high fever caused by a readily-treatable infection, the cut needing a couple of stitches, the sprained ankle needing an x-ray, the visit to get a prescription for contraceptives) were told exactly what the PPA tells them now even if they never show up for care – that is, buy insurance or pay a penalty — insurance risk pools could work.  Indeed, virtually everyone would soon have the obligation to buy insurance or pay the penalty.  If health “insurance” were like other forms of insurance, and protected only against things that we thought unlikely to happen during a term of coverage, this point would be more obvious: requiring health insurance at the time of purchase of health care services would be akin to requiring auto insurance at the time of purchase of a car.  But the point is obscured, I think, because we cover routine maintenance with health “insurance.”


Jurisdiction and lawyering; reducing risks of paradox and impasse

Thanks for inviting me to guest-blog on the ACA Supreme Court arguments.

To my mind, the most striking aspect of today’s argument was how little support there seems to be for characterizing the Anti-Injunction Act as jurisdictional.  The question of whether to characterize the Anti-Injunction Act as jurisdictional is important precisely because if it is jurisdictional, courts have to consider the issue.  If it is jurisdictional, it doesn’t matter that the government failed to raise the issue in the court of appeals.  If it is jurisdictional, it doesn’t matter that the government affirmatively argues that the Anti-Injunction Act is not a bar to this litigation.

On the other hand, if the Anti-Injunction Act is a non-jurisdictional claims-processing rule, the government forfeited the issue by failing to raise it in the court of appeals, and lost any hope of regaining it by affirmatively arguing that the Act is not a bar to this litigation.  Either would be enough; both would be belt and suspenders holding up the pants of this case.

Scott suggests that “if the government loses, its refusal call the mandate penalty a ‘tax’ may be a historically colossal lawyering failure.”  Maybe.  But if the Anti-Injunction Act is a claims-processing rule, this is a failure that could not be remedied at oral argument, but would have had to have been preserved throughout the litigation, from district court through court of appeals to Supreme Court.  And good lawyering often involves considering the client’s broader interests, not simply winning this individual case – a point I think lawyers may overlook too easily. It seems to me that the Obama administration decided a long time ago that it was in the nation’s best interests – and perhaps Obama’s own re-election interests– to get a decision sooner rather than later. 

This point about lawyering – that it often involves considering the client’s broader interests, not simply winning this individual case – is illustrated by another aspect of the Solicitor General’s argument today.  Having decided to take the position that the Anti-Injunction Act does not bar this litigation, he could have taken the easiest route to that conclusion and argued that the Anti-Injunction Act is a non-jurisdictional, claims-processing rule.  Viewed that way, the government would have the power to waive any objection based on the Anti-Injunction Act.  Moreover, there is precedent supporting that approach: the Helvering v. Davis case that Chief Justice Roberts kept referring to in which the court reached the merits of a challenge to the Social Security Act in reliance on the government’s waiver of the Anti-Injunction Act.  301 U.S. 619 (1937).  But the Solicitor General refused to take that route, despite considerable prompting, because of his concern about how that might come back to haunt the government in other cases.

As I heard the argument today, it seemed that the Solicitor General made little headway on this point.  Only Justice Breyer indicated real support for viewing the Anti-Injunction Act as jurisdictional.  Chief Justice Roberts, as well as Justices Scalia, Alito, and Kagan seemed quite skeptical of that view, as did (to a lesser extent) Justices  Kennedy and Sotomayor.  And Justice Breyer strongly suggested that Anti-Injunction Act, despite being jurisdictional, would not bar the litigation, because Congress did not label the penalty a tax, while Justice Ginsburg likewise suggested no bar, without a need to reach the question of jurisdiction.

One of the things that I have contemplated about this case – with its welter of cross-cutting issues involving the Anti-Injunction Act, the Commerce power, the Tax power, and severability – is the possibility of a voting paradox or even a judgment impasse. 

Imagine, as to the Anti-Injunction Act, if six justices viewed the Act as jurisdictional, and five justices viewed the penalty as a tax within the meaning of the Anti-Injunction Act.  One might think that this would mean dismissal under the Anti-Injunction Act.  But not if the three who viewed the Act as non-jurisdictional were not the same people as the four who viewed the penalty as not a tax: in that case, the vote on whether to dismiss or not would be seven to two against dismissal.  This voting paradox now seems unlikely given the scant support for treating the Anti-Injunction Act as jurisdictional.

Given the apparent lack of support for dismissing on the basis of the Anti-Injunction Act, the risk of a judgment impasse also seems greatly reduced.  If dismissal on the basis of the Anti-Injunction Act had more support, that would be a bigger risk.  Imagine, for example, if two justices voted to dismiss the action on the basis of the Anti-Injunction Act, and the remaining seven split four to three regarding the constitutionality of the individual mandate.  No judgment would command a majority, and the court would face a judgment impasse.

I’m not sure we are out of the woods on these risks yet.  But one possible upside to today’s rather one-sided argument is that these risks seem reduced.