The Fourth Circuit Ducks Two Separate Health Care Challenges

Earlier today, the Fourth Circuit dismissed Virginia's challenge to the individual mandate on standing grounds.  According to the three-judge panel, the state of Virginia does not have a "sovereign interest in challenging" the individual mandate simply because it enacted a law that memorialized its disapproval of a federal law.

This is a largely uneventful opinion, authored by a Clinton appointee and joined by two Obama appointees (this same panel also dismissed a challenge to the law by Liberty University on jurisdictional grounds). Towards the end of the opinion, however, the following observation caught my eye:

Thus, if we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court. . . .  We cannot accept a theory of standing that so contravenes settled jurisdictional constraints.

Think for a moment about what this means.  Were a state allowed to challenge a federal law simply by passing a statute in conflict with it, federal judges would have no way to become embroiled in any issue, "no matter how generalized nor quintessentially political."

That simply makes no sense.

If you don't believe me, think only about the Bush v. Gore litigation, and how long the standing question occupied the justices' time.  (In case you don't remember, the answer is, not one second).  Instead, justice Scalia was fond of reminding his adulating audiences that there was nothing the justices could do other than accept the case.  As he recently said in an interview:

Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn't important enough?

Well, how about, nobody had standing to bring suit; or maybe this was a political question best left for the political branches; or maybe federal law placed this controversy within the explicit purview of the Congress?  Would any of those work?

The point is not whether a litigant has standing, or whether a question is political or not.  The only question is whether a court wishes to decide the question or whether it wishes to duck the issue.  This is another way of saying, had the Fourth Circuit panel wished to decide the question, there is simply no way that standing doctrine or jurisdictional hurdles would have stood in the way.

Did he really say that? Charles Fried on the Health Care Bill

You think you know a guy, until it comes out that you really don't.  Here's Charles Fried, former Reagan administration solicitor general and professor of law at Harvard, on the health care bill: "I'm not sure it's good policy. I'm not sure it's going to make the country any better . . . But I am quite sure the health-care mandate is constitutional."  Professor Fried defended the constitutionality of the law during a Senate hearing a few weeks back.  (His testimony can be found here).

Two quick thoughts: First, I wonder whether those bloggers all bent out if shape about Tribe's and Amar's defense are similarly bent over this one.  I cannot say I have seen it, though I must also say that I have not looked very hard. 

Second, and for all of his careful analysis, note the one factor that Fried ultimately thinks will decide the case.  In his words, he argues that the political climate at the time of the decision will be the "wildcard."  More specifically, "How much of the political bug will these people get bitten by, and how strong will their immunity be?"

How refreshing.  

Another One Bites the Dust

Earlier today, a federal judge in Pensacola, Florida ruled that the 2010 Patient Protection and Affordable Care Act is unconstitutional. From here on out, we can fill in the rest of the blanks without doing any research whatsoever. Yes, the judge was appointed by a Republican President -- the judge is on senior status, so it must be Reagan -- and no, it is not a coincidence that the suit ended up in Pensacola, Florida -- lots of conservative judges up there -- and yes, the judge ruled that the law exceeds Congress' commerce power. That about covers it.

The response from the Obama administration is not surprising. They don't like the opinion. But far more interesting is the notion that this ruling can actually affect the law going forward.  In the words of an administration official, for example, "You could have governors come out tomorrow and say my state will no longer enforce this law because this judge said the whole things is unconstitutional." But this was true before this judge ruled down in Pensacola, and it is not much different from a governor coming out next week and saying that they will support the law because two judges upheld it months before. This one ruling doesn't change anything. Curiously, the judge did refuse to enjoin the law while the parties appeal the decision, yet suggested that his declaratory judgment is "the functional equivalent of an injunction." Whatever that means.

Also quite interesting, if expected, is the reaction from Republican leaders. They praised the ruling.  Not a word about judicial overreaching, or about activist federal judges causing havoc with the work of our political branches. Not a word. I wonder what Senator Sessions thinks of this one. I can only imagine.

I have four questions.

Could the Health Care Law be Unconstitutional?

A recent online debate in the New York Times asked whether the recently enacted health care law is unconstitutional. For answers, the editors recruited four law professors and two attorneys in the federal health care lawsuit. Their answers will not surprise you.

Those in support of the law argue that Congress is well within its enumerated powers to tax and spend money for the general welfare, the commerce power, and does not commandeer the states under the 10th Amendment. To Jack Balkin, for example, critics of the law “are really claiming that it is unconstitutional to make Americans pay taxes,” while James Blumstein writes that success on this particular suit would require overturning decades of precedent under the Commerce power. This is something that a self-professed “minimalist” Court should not take lightly.

In contrast, those who argue against the law understand it as a quintessential exercise in police powers and thus outside the powers of Congress to regulate. According to Randy Barnett, for example, the text of the Constitution does not authorize this exercise of power, nor has the Court ever upheld anything like it. To David Rivkin and Lee Casey, counsel in the federal suit, allowing this law to stand would essentially put an end to the notion of limited, unenumerated powers. If Congress can do this, they argue, there is simply no limit to what it can do.

Can you tell what is missing from these four accounts?

These debates never cease to amaze me. To the question, is X law unconstitutional, answers are usually given in the form of legal arguments. In other words, whether the health care law is unconstitutional depends on one’s reading of the 10th Amendment, or the Ninth, or the powers of Congress under Article I. This is right out of an “Alice in Wonderland” world that I don’t think many people recognize as their own. Were the Supreme Court to accept review on this case, does anybody really believe that its decision will be controlled by pre-existing law?

I understand these are lawyers and law professors writing these short responses, and to teach in a law school under the legal method must mean that the law means something and that precedent matters. I get that. But surely there is a difference between day-to-day cases and the cases that rivet a nation. Think here Bush v. Gore; a future challenge to the Voting Rights Act; even Citizens United. Does anybody really believe these cases were or would be decided by existing law, and that the justices’ personal preferences played no role at all?

In fairness, Professor Barnett comes closest to the nub of the case. He concedes that it is a safe bet to assume that five justices will choose not to overturn the law. Yet in the following sentence, he appears to give the game away:

But what if the bill turns out to be supremely unpopular? What if one or both houses of Congress flip parties because of it? What if majorities in Congress favor repeal but are blocked by a Senate filibuster or a presidential veto? Still as confident about five votes?

I agree with Barnett that the justices will not choose to step into this morass. I also agree that the Court is influenced by context and public opinion. This is simply another way of saying that the law will play a secondary role, if any role at all. The rest of it is just window-dressing. No need to bother wasting our time.

Are we all activists now?

President George W. Bush reminded us any chance he got that he would only appoint strict constructionists -- whatever that means -- to the federal bench. These would be judges in the mold of Justices Thomas and Scalia. This is a conservative canard, but one with plenty of traction among the public.

An article posted today by Linda Greenhouse reminded me of this old debate. Greenhouse is weighing in on looming constitutional attack on the health care bill and argues that the Supreme Court is unlikely to strike down the recent legislation. I agree with her position wholeheartedly. But her article is far more important for all that it implies about judicial behavior and the many relevant influences on federal judges.

Three passages in particular caught my attention.

The first passage responded directly to the states' arguments against the health care legislation. As she points out, one can find much commentary on this questions around the blogosphere, often made by people who ought to know better. For, as Greenhouse writes, "the only real question is whether any of these arguments will find a warm reception from at least five Supreme Court justices. The answer, almost certainly, is no." This is, without question, the crux of the case. Will the conservative justices have the will to take on the landmark health care legislation? Or in Greenhouses words, "Students of Rehnquist-style federalism will recall that the master himself blinked when his revolution got too close to the core of issues that people really care about."

Make no mistake, to take on the health care legislation would entail judicial activism of the highest order. In the wake of Citizens United and, a decade ago, Bush v. Gore, it would be hard to be surprised by anything the "conservatives" on the Court choose to do anymore.

The second passage is closely connected to the first point:

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

I cannot help but read this passage and recall the recent Sotomayor hearings and the feigned indignation by Senator Sessions and many conservatives about her "wise Latina" remark. Her point was simple and hardly newsworthy: the background of a nominee will shape how s/he decides cases on the bench. I can hardly think of a more benign statement. This is Linda Greenhouse's point, and I wonder whether the conservatives who attacked Justice Sotomayor will likewise attack Ms. Greenhouse. I seriously doubt it.

Finally, Greenhouse writes that "John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own." I wonder whether this is true, in light of Citizens United. Perhaps this is a bad example, since few people understand the arcana of campaign finance law and the way in which the conservatives went about overturning the Austin case. Greenhouse's sentiment does help explain the recent Namudno case, where the Chief Justice avoided a constitutional confrontation with Congress over the Voting Rights Act. If Greenhouse is correct, it may just be that the Voting Rights Act is on safe constitutional ground after all. I have my doubts. Either way, I am more interested in how this argument casts the Chief Justice, as a judicial strategist more interested in his image and that of the Court than in following the exacting demands of the law.

This is exactly how we ought to view federal judges, and conservative judges should not be an exception. Somehow, however, I have a sinking feeling that it will take much more for the conservative canard to fade from view.