More on the activity/inactivity canard in the ACA litigation

by Beverly Mann

Last week, one of the law blogs I read regularly mentioned a post from May 11 on a law blog read regularly by a lot of law geeks (but not by me) about the oral argument in those cases a day earlier. The blog is The Volokh Conspiracy. Its bloggers are prominent rightwing or libertarian-right law profs, most of whom once were law clerks to a conservative Supreme Court justice. This particular post was by Georgetown law prof. Randy Barnett, who is a veritable font of rightwing legal theory and suggestions for rightwing laws and legal arguments.

He also is, from what I can tell, the farthest right of that blog’s bloggers. Earlier this year, one of the big, big names on that blog, Orin Kerr, wrote that he was pretty darned certain that under the Supreme Court’s Commerce Clause and Necessary and Proper Clause rulings, the ACA was constitutional. One of the other bloggers there—probably Barnett, but I don’t recall—disputed that.

Anyway, in his May 11 post, Barnett recounted an exchange between acting Solicitor General Neal Katyal, who was arguing the appeal on behalf of the government, and panel judge Diana Gribbon Motz, a Clinton appointee. To refresh your memory from two weeks ago, all three of the panel members are Dem appointees, the other two of them appointed by Obama. Also to refresh your memory, the main challenge to the constitutionality of the ACA is that the Constitution’s Commerce Clause does not give Congress the authority to regulate inactivity. To which the government has responded that the decision to not buy health insurance and to instead rely upon the largess of the government, hospitals and ultimately those who do pay health insurance premiums to get emergency medical treatment, is activity. And that in any event, under the Supreme Court’s longtime Commerce Clause jurisprudence, that Clause coupled with the Necessary and Proper Clause gives Congress the power to regulate markets and that therefore there is no activity/inactivity distinction for Commerce Clause purposes.

The Commerce Clause gives Congress the power, in the Constitution’s precise words, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

In his post, Barnett pointed out something that was not in the other reports I’d read about the oral arguments: that in a lengthy exchange with Katyal, Motz indicated that she buys the activity/non-activity distinction, because she believes the definition of the word “regulate” means “regulate activity.” She kept insisting that if the failure to buy health insurance is inactivity rather than activity, then, under her understanding of the definition of the word “regulate,” Congress couldn’t regulate it.

Katyal flubbed the response to this. Partly. He noted the Supreme Court’s most recent relevant Commerce Clause/Necessary and Proper Clause decision, Gonzales v. Raich, a 2005 opinion that held that the federal statute enacted under the Commerce Clause powers that criminalizes the growing and use of marijuana applies even to homegrown marijuana that is not sold even intrastate, much less in interstate commerce, and that is just for the personal use of the grower. The rationale: that even those actions impact the interstate market for marijuana. Since the Commerce Clause gives Congress the authority to regulate interstate markets, Congress can, under the Necessary and Proper Clause, regulate things that otherwise cannot be regulated under the Commerce power if those things impact the interstate market.

Motz, though, missed the point. Growing marijuana is an activity, she pointed out, so how is Raich relevant to whether Congress can, under the Commerce Clause together with the Necessary and Proper Clause, regulate inactivity? Well, um, maybe that what’s relevant isn’t the particular reason why the Commerce Clause alone isn’t enough and must be aided by the Necessary and Proper Clause, but instead that if something—whether activity only within a state’s boundary, or instead inactivity, or instead whatever—impacts a market that Congress has the power under the Commerce Clause to regulate, then Congress has the constitution authority to regulate it as necessary and proper under the Commerce Clause.

Katyal apparently was too dumbfounded to explain this. According to a report I read, he was assigned to handle those oral arguments only a two or three days before the date of the arguments, and that might be one reason; the top person at the Solicitor General’s office normally personally only does that in the Supreme Court (and then, rarely).

A day or two after those oral arguments, Obama’s nomination of a man named Donald Verrilli to replace Elena Kagan as Solicitor General was voted out of committee. It’s scheduled for a full vote in the Senate on June 6. Here’s some of what the New York Times said about Verrilli’s background last January when Obama nominated him:

Before joining the administration (in 2009), Mr. Verrilli spent two decades as a prominent litigator with the law firm of Jenner & Block, where he was chairman of its Supreme Court practice group, while also teaching First Amendment law as an adjunct professor at Georgetown law school.

He participated in more than 100 Supreme Court cases and argued 12 of them. He has also argued about 35 times before federal appeals courts and state supreme courts.

Verrilli won’t be arguing the Sixth Circuit ACA-case appeal there on June 1. But presumably, he’ll be arguing the upcoming ACA appeals in the other federal appellate courts-including the two in the Eleventh Circuit, one of which is the most high-profile one nationally because the lower-court judge, Roger Vinson, pronounced the entire ACA unconstitutional, the other in which the lower-court judge ruled the entire statute constitutional. And he’ll eventually defend the statute’s constitutionality in the Supreme Court. Enough said. I’m pretty sure of it.

By which I mean that the case will be argued for the government as sharply and expertly as the cases will be argued for the other side by former Bush Solicitor General Paul Clement, who, now in private practice, was retained to represent the statute-challengers in the Roger Vinson case in the Eleventh Circuit. Unless, of course, Verrilli’s nomination is filibustered.

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