Paul Clement’s weird tail-can-morph-the-dog ACA-litigation argument

by Beverly Mann

Paul Clement’s weird tail-can-morph-the-dog ACA-litigation argument

Earlier this month I wrote a post called “Markets and the ACA: Why the Supreme Court Will Uphold the ACA” that discussed an article-length post by Santa Clara constitutional law prof. Brad Joondeph published on a blog he runs dedicated entirely to the ACA litigation. I wrote:

[Santa Clara law prof. and ACA-litigation blogger Brad Joondelph is] right, but only if, as he says earlier, the market for health insurance is defined so narrowly that health insurance is viewed as a commodity, a product, independent of the product’s purpose and effect. And then, the constitutional issue would not, I think, be whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to regulate the health insurance market, but instead whether this violates some other constitutional limitation. You know: the slippery-slope-to-government-compelled-consumption-of-broccoli argument.

I wrote that post and sent it to Dan a day or two before the oral argument in the 11th Circuit Court of Appeals in what most commentators think is likely to be the ACA case that the Supreme Court will use to decide the constitutionality of the ACA. Dan posted it a day after the argument.

The plaintiffs in that case are 26 states, two or three individuals, and an organization of small businesses. Former Bush solicitor general and current top-notch private-practice appellate and Supreme Court litigator Paul Clement is representing the 26 states. Another lawyer is representing the private plaintiffs.

The oral argument featured a colloquy between Clement and Judge Stanley Marcus, the swing vote on the panel hearing that appeal, that caused me to write a follow-up to my “Markets and the ACA” post called “Ah! It’s not about regulating markets, after all! It’s about regulating the individual!” I said in that post that in light of what occurred at that oral argument, which was based on the several reports I’d read—I hadn’t read the transcript of the three-hour argument—it looks like I was on to something when I wrote in the earlier post that the constitutional issue might not be whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to regulate the health insurance market, but instead whether this violates some other constitutional limitation.

Last week, I emailed Prof. Joondeph, told him about my posts, and asked what he thought of my analysis and my prediction that the case might be decided not on the issue of whether Congress has the authority under the Commerce Clause (coupled with the Necessary and Proper Clause) to regulate the health insurance market but instead whether the individual-mandate provision violates some other constitutional limitation. His response, which provided more information about what really transpired between Marcus and Clement, surprised me. With his permission to publish it, here’s his response:

Very nice to hear from you. And I’m glad you found at least some of my analysis mildly helpful.

I generally agree with your legal analysis: there seems to be virtually no way any court invalidates the ACA on substantive due process grounds. The notion that forcing someone to purchase a product against their will violates the “liberty” protected by the Due Process Clause has not had any real support since 1937, when the Court decided West Coast Hoteland ended the Lochnerera. So that claim is going nowhere.

This is why the states have actually abandoned the claim (though they raised it in their initial complaint). So there literally is no chance for this claim. It is no longer a part of the case.

What Clement and Marcus discussed at argument was whether it was at all anomalous that the underlying objection to the mandate sounded in “liberty,” but that the legal challenge was framed along the dimensions of “powers.” Marcus thought it a bit strange. Clement argued it was not, as the federal structure of government is ultimately intended to protect individual liberty (as the Supreme Court has stated on several occasions).

Perhaps even more specifically, I think Marcus was wondering whether it made any sense to impose a “Congress can only regulate voluntary action” limitation on the commerce power, if that limitation stemmed principally from individual liberty concerns, rather than from a coherent conception of the scope of interstate commerce.

Not sure this directly responds to your questions. But those are my thoughts — coherent or otherwise. 🙂

All the best,

Whoa. Okay. My response:

One of my pet peeves as a political liberal is this claim by the conservative justices that federalism necessarily translates into a protection of individual liberty. The Court is incessantly invoking federalist principals to keep the federal courts from intervening when states-especially state courts, but state legislatures too-infringe upon individual constitutional rights and upon individual liberty. Destroying individual liberty in order to save it, I guess.

During oral argument in February in the Supreme Court in Bond v. United States, the wacky case in which a biochemist tried to poison her former friend and current paramour of the biochemist’s husband, Kennedy said, “The whole point of separation of powers, the whole point of federalism, is that it inheres to the individual and his or her right to liberty; and if that is infringed by a criminal conviction or in any other way that causes specific injury, why can’t it be raised?” What nonsense that the whole point of federalism is that it inheres to the individual and his or her right to liberty. In Bond, it works that way. In other cases, not so much.

Anyway … thanks for responding.


Lochner v. New York is a 1905 Supreme Court case that invalidated a New York state labor law that limited the number of hours a baker could work per week to 60. The Court said the statute violated the ‘liberty’ guarantee in the Fourteenth Amendment’s due process clause because it removed what the Court said was the constitutional right to contract freely.

Back then, “substantive” due process—the right to make certain decisions without government interference—was limited to economic decisions. In the 1960s, the Court expanded the concept to include the right to make certain deeply personal, non-economic decisions (such as the right to use contraceptives, to have an abortion under certain circumstances, to have homosexual sex) without government interference. Some modern legal conservatives, including four current Supreme Court justices, share the Lochner-era view that substantive due process protects only economic ‘liberty,’ and does so almost without limit.

Lochner operated as a bar to most labor laws, until it was overturned in 1937 in a case called West Coast Hotel Co. v. Parrish, in which the Court upheld a Washington state minimum-wage statute and said the Constitution does not include an absolute right to contract freely. The opinion held that states are entitled to restrict liberty of contract in order to protect the health and safety of the community or of vulnerable groups.

Clement, who was not involved in the case in the lower court, chose to drop the economic-substantive-due-process argument on appeal—if only ostensibly—presumably because he views the West Coast Hotel and the three quarters of a century of Supreme Court jurisprudence based on that opinion as having settled the matter. No justice but Clarence Thomas would vote to overrule those precedents, even in order to void ‘Obamacare’.

But Clement is attempting a really weird, and really dangerous, sleight of hand, and apparently Marcus saw through it. If the individual mandate violates a constitutionally protected liberty interest, then the mandate is unconstitutional on that basis, irrespective of whether Congress had the authority to enact it as necessary and proper under the Commerce power. And if the mandate doesn’t violate a constitutionally protected liberty interest, then substantive due process—individual liberty—can’t remove Congress’s authority to enact the mandate as necessary and proper under the Commerce power. Conflating the two separate arguments doesn’t make it greater, constitutionally speaking, than the sum of its two separate parts.

But if it does, we’re in for an interesting ride. All that would be necessary to have the Court strike down any statute as beyond Congress’s authority under whatever the respective “enumerated” power under which the statute was enacted—the defense power; the taxing power; the spending power; whatever—would be to identify the relevant enumerated power and transform an unsuccessful substantive-due-process claim and an otherwise unsuccessful enumerated-powers claim into a successful enumerated-powers claim. So long, Selective Service Act. For example.

Or maybe not. The Court’s 5-4 majority could limit the ruling to that one case. That, of course, has it’s own precedent, called Bush v.Gore.


The day after my email exchange with Prof. Joondeph, the Court issued its opinion in Bond. Kennedy wrote the opinion for a unanimous court. Ginsburg wrote a separate concurrence, which Breyer joined.


My thanks to Prof. Joondeph.