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.
So while we all argue Commerce Clause and the Necessary and Proper Clause; the opposition argues violation of individual liberties as protected by states (I would also add that state courts are no individual right vigilantees and are more prone to reinforce the state legislatures than test the state or federal constitutionality of those laws. As we both know states have ignored the federal constitution in favor of state laws and subsequently act as if the federal constitutionality of a state law was never raised in appeal when in federal court.). So are we expected to see anothing parsing of the 14th amendment withn regard Slaughterhouse with regard to the federal government having the authority or does the state have a greater authority?
It would appear we may be heading in this direction if I interpret your post correctly. Who would have ever thought a Reconstruction SCOTUS decision (Miller Court) would have ever held such predominance today while so many other precedents are being struck down by this Kennedy led court? I am surprised you have not written about the WalMart SCOTUS decision. I sense the court was saying come back in smaller bites.
No, in the ACA litigation and in Bond v. United States the parties making the claim (the plaintiffs in the ACA litigation; the criminal defendant in Bond) are making what’s known as a Tenth Amendment argument, but with a twist. The Tenth Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Modern conservative legal types, professional ones and Tea Party ones, LOVE the Tenth Amendment, but they—and the courts—treat that Amendment as though it reads: “The powers not delegated to the United States by the Constitution are reserved to the States respectively.” The states-rights/Tea Party crowd claims that the Commerce power and the other “enumerated” powers—the specifically identified powers that the Constitution grants to the federal government—are narrowly-defined powers and that the Necessary and Proper Clause doesn’t expand those powers.
The twist in Bond was that although traditionally, only the state itself was thought to have “standing” to claim that a statute violates the Tenth Amendment, Bond was claiming that the federal statute under which she was prosecuted was unconstitutional because, either as written or as applied specifically to her, it exceeded Congress’s “defense” enumerated power (the enumerated power under which the statute was enacted). The federal government responded by arguing that she had no “standing” to make that claim because she’s not a state. The Court held, in a unanimous opinion by Kennedy, that she did have standing to make that claim, because she was prosecuted under that statute and therefore had suffered a direct injury as a result of what she’s claiming is an unconstitutional statute; no matter that the ground on which she was claiming that it is unconstitutional has nothing directly to do with her. I agree wholeheartedly with that unanimous opinion, by the way.
In the ACA litigation, though, the twist stranger. The plaintiffs aren’t claiming directly that the ACA is unconstitutional because it directly violates their right to economic liberty (i.e., to not be forced to buy medical insurance if they can afford to). Instead, they’re claiming that the ACA exceeds Congress’s Commerce power BECAUSE it violates their right to economic liberty, even though the statute doesn’t otherwise (doesn’t directly) violate their right to economic liberty. It’s smoke and mirrors. Alchemy. A magic act. It’s ridiculous. (Which of course doesn’t mean it won’t succeed.)
About the Wal-Mart case, I haven’t written about because a zillion other people have, and they’re all (at least all the ones I’ve read) are in agreement with one another, and I agree with them. I think you’re right that the Court was saying the plaintiffs should come back in smaller bites, but the main problem I have with the opinion is that it […]
The Kennedy Court is doing well, I take it? And what about those new guys . . . ahhh . .. ahh Roberts and Alito? Isn’t that there names?
Early this year, when the opinions from this term started really coming out, it looked like Kennedy no longer was a swing vote but instead a dependable vote for the conservative line. He and Thomas are the most aggressive, almost maniacal enforcers of an extreme, and in my opinion unconstitutional, interpretation of that ugly 1996 states-rights habeas statute you’ve heard me rant about (in real life) a zillion times—and he was in top form in a series of opinions on that early this year. And he’s an automatic vote for business interests, and illustrated that clearly again this year.
But in the last three months or so he became, truly, the swing vote, voting with the liberals in a few really important (in my opinion) civil liberties cases, most notably and dramatically Brown v. Plata, the case about the decades-long appalling—truly inhumane—conditions in California prisons.
What’s weird about Roberts and Alito is that they’re completely mechanical. Unlike Kennedy and (albeit rarely) Scalia and even Thomas, Roberts and Alito never, ever, ever depart from rote Reagan-era conservatism. Ever. They’re really unprincipled, in my opinion. They don’t act at all like judges are supposed to act, and they really make almost no pretense that they do. They seem to see themselves instead as legislators, and openly act that way.