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Easy outing for health care law?


One thing about the fate of the new health care law emerged vividly in its first challenge Tuesday in a federal appeals court: the challengers cannot defeat the law in court unless they sharpen their argument that Congress has set out in a revolutionary new direction to control Americans’ personal lives.  They have built their challenge almost entirely on the premise that Congress can regulate “activity,” but cannot regulate “inactivity.”  But that attempted distinction, so clear in the eye of the challengers, seemed fundamentally baffling — and thus probably unconvincing — to the three judges who heard just over two hours of argument in the Fourth Circuit Court in Richmond.

By far the most time in the argument on two cases was focused on the constitutionality of the new law’s mandate that virtually every American has to have health insurance by the year 2014 — a mandate that the challengers say is an attempt to coerce people to engage in a commercial “activity” they might otherwise opt not to do, something, they say, that Congress has never tried to do before.

Circuit Judge Diana Gribbon Motz was persistent, but ultimately unsuccessful, in trying to get Liberty University law school dean Mathew D. Staver to say just what “activity” means in talking about Congress’s power to regulate the Nation’s commerce, including the health care part of commerce.  Staver tried to make the notion clearer, saying that it was “something you could see, touch,” or “something tangible.”  People who don’t want to buy health insurance, he argued, are engaged only in “idleness,” and that is something beyond Congress’s reach.

But Motz shot back that, when Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned “activity” as a crucial factor, and the Constitution itself does not mention the word, so, she kept asking, just what is it?  “We’re trying to get you to give us some help,” the judge said, “with this distinction you think is so important.”

Circuit Judge Andre M. Davis wondered if “a mental process” is “activity,” obviously implying that a person’s specific choice not to buy insurance might be something Congress could regulate, even if “activity” were a necessary predicate.  And, Davis asked, “You talked about ‘inactivity.’ Where in the cases do you find that?”  Circuit Judge James A. Wynn, Jr., asked where the word “tangible” was in the Commerce Clause as a check on congressional power — and, of course, the word is not there.  “Are you describing a ‘commodity clause,’ instead of a commerce clause?” Wynn also asked Staver.  At another point, Wynn said Staver was taking the court “up and down the abstraction ladder,” when what courts need to focus upon and defer to is “the very practical character of Congress’s power.”

Both Judges Wynn and Davis, it turned out, would give the impression that they were quite sympathetic to Congress’s authority, picking up repeatedly on the government’s main defense of the new law’s mandate to buy health insurance so as to spread the cost of expanded coverage. That defense is that everyone is going to need health care someday, so the only question is who is going to pay for it, and when.

To make the point even more tellingly, Wynn spelled out a scenario in which several young Virginia collegians were seriously injured in an auto accident on their way to the beach, but were restored completely to good health and “a full and complete life,” running up medical bills of “hundreds and hundreds of thousands of dollars.” Who, he wondered, pays for that?  Then the judge added: “Does Congress have no power to address in the aggregate what happens every day in this country?”  Staver said that was “a compelling story,” but such scenarios did not give Congress power to force people to buy health insurance.

Judge Davis, at times echoed by Judge Wynn, suggested that whether one talked about “activity” or “inactivity,” what may matter more is that what the individual does in the health insurance market may well have an influence when one ponders — as Congress supposedly did — the nationwide impact of multitudes of individual choices about entering or not entering that market.  That, of course, is also a part of the government’s defense of the new law’s insurance-purchase mandate, borrowing from past Supreme Court precedents that have seen national impact in the collection of perhaps narrow, local economic choices.

The inevitable “broccoli” question — that is, if Congress can force consumers to buy health insurance, couldn’t it also force people to eat broccoli for better health — came up in Judge Motz’s questioning of Staver, as did questions she put about whether Congress could tell people not to eat foods containing “trans fat.”  Staver, of course, supported the notion that a broccoli mandate was going too far, but seemed to think that maybe Congress did have the power to try to quell an indulgence in fatty foods.

Showing a deep fascination with the merits of the constitutional issue before them, the three judges allowed Staver to continue his argument for twice his allotted 20 minutes, and then turned to the government’s lawyer, Acting Solicitor General Neal K. Katyal, who used just a few minutes less than Staver had.  Although the questioning of Katyal was lively, the judges’ reaction was notably less skeptical.

As Katyal was nearing his finish, Judge Motz asked whether, if the new law were upheld, “aren’t we just opening up to an unlimited congressional power?”  But it sounded more like an obligatory question that had more a rhetorical flair than an expression of actual worry.  Katyal responded that the Supreme Court’s past rulings on Congress’s powers had imposed strict limits, and the new law did not exceed them.

A constant theme of Katyal’s argument was that, whether what Congress was regulating could be called “activity” or “inactivity,” the new law boiled down to providing an answer to “how and when health care is paid for.”  No one, he contended, can opt out of the need, sooner or later, for health care, because “that is a universal feature of existence.”

Although it was clear that the government would prefer to have the Fourth Circuit, and other courts, see that the new law did in fact seek to regulate “activity” — Katyal said it was the activity of everyone being in the health care market — he wound up arguing that the law could be upheld even if it were found to target “inactivity” in the form of opting out of health insurance.  Whatever that phenomenon was labeled, he said, the question was whether it had “a substantial effect on interstate commerce.”  He insisted that it clearly did.

“When people self-finance their health care,” Katyal contended, “that raises the cost of health care overall by $43 billion a year, and that raises the average family’s premiums by $1,000 a year.  That will price untold numbers of people out of the market.”

The most sweeping part of Katyal’s defense of Congress’s authority to pass the new law was that, even beyond what Congress could do under the Constitution’s Commerce Clause, it had even greater power under the Necessary and Proper Clause.  Under that grant of undefined power, the government attorney said, Congress clearly had authority to “fill in the gaps” in health care “to remove obstacles to participation in a comprehensive scheme.”

The only part of Katyal’s argument that did not seem to draw notable sympathy was his separate claim that the new law was justified by Congress’s power to pass tax legislation.  He insisted that the insurance purchase mandate was a revenue-raising measure, because penalties for people who do not buy health insurance could bring some $4 billion a year into the U.S. Treasury.  The three judges were notably more interested in the Commerce Clause issue.

The Circuit Court’s exploration of the constitutional questions over the insurance mandate were largely confined to the first case argued, Liberty University v. Geithner.  When the Court turned to the second case, Virginia v. Sebelius, the argument was more abbreviated, focusing mainly on whether the state of Virginia had any legal right to file its court challenge to the new law.   Katyal argued that the state was trying to step in between its citizens and the federal government, and was not really trying to defend any of the state’s own interests as a sovereign government.  However, Virginia’s state solicitor general, E. Duncan Getchell, Jr., countered that the state had a distinct sovereign interest in seeing that its own laws were enforced, and the lawsuit against the federal law was prompted because it would override a new Virginia state law protecting people from being forced to buy health insurance against their will.

The overall impression of this part of the argument was that Virginia might have difficulty prevailing on its claimed right to sue.   The debate between the two lawyers on that issue, and the questions from the bench, focused on prior Supreme Court rulings that may point in opposing directions on states’ power to sue the federal government.

Katyal, however, may have succeeded in making that point of “standing” to sue less important, as he argued that no one doubts that Liberty University’s challenge was properly in court.  Although the Virginia case does raise some constitutional issues that are not in the Liberty University case, the main issue in both is the validity of the insurance-purchase mandate.  A ruling on that in the university case might make it unnecessary to reach the Virginia case at all, unless the Court feels a need to opine on states’ “standing” as an issue of legal and constitutional consequence.

NOTE TO READERS: This post was based upon listening to the audiotape of the two oral arguments, rather than observing them in person.  Since the judges asking questions were not identified, unless counsel in answering used a judge’s name, there was some confusion here and there as to whether Judge Davis or Judge Wynn was the questioner.  The author of this blog is reasonably confident of the identifications, and is even more content with the analysis of those two judges’ seeming leanings, but would stand corrected if there is any incorrect individual attribution.  (This kind of problem would be solved, of course, if the Circuit Courts would provide videotape of their arguments.)

Recommended Citation: Lyle Denniston, Easy outing for health care law?, SCOTUSblog (May. 10, 2011, 5:34 PM),