How not to be Cynical about the Individual Mandate in Court?

There is a new opinion on the constitutionality of the health care law, by Judge Christopher Connor of the Middle District of Pennsylvania, striking down the mandate.  Unsurprisingly, all you need to know about the opinion is encapsulated by the fact that Judge Connor was nominated to the bench by President George W. Bush.  

It is getting harder and harder not to be cynical about this. Only two out of the twelve judges who have ruled on this question have not ruled in line with the ideology of their nominating president.  Both are appellate judges, one in the Sixth Circuit -- Judge Jeffrey Sutton, nominated by George W. Bush -- and one in the 11th Circuit -- Judge Frank Hull, nominated by Bill Clinton. (Incidentally, the three judges on the Fourth Circuit who dismissed the challenges were, unsurprisingly, nominated by Presidents Obama and Clinton).

Moving forward, the interesting question lies in explaining these two votes.  Could they have voted as they did in order to force a circuit split and thus making review by the Supreme Court more likely? 

This question leads directly to a second, more interesting question: while the commentary assumes that the existing circuit split ensures that the Court will take up this question in the near future, will four justices choose to thrust the Court into this debate on an election year?

I am not so sure.  And yet, whether four justices so choose will tell us a great deal about the Court and the role that it sees for itself in our constitutional system.

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.

Judging the Health Care Law

A federal judge in Virginia has fired the first direct salvo against the constitutionality of the health care law, and the debate now rages in the blogosphere. This is a debate largely about the merits of Judge Hudson’s opinion in Virginia v. Sebelius striking down the law’s specific mandate that individuals buy health insurance. To the critics, this ruling is "bizarre," significant error" and invites “mischief,” with parts of the opinion reading “as someone determined to strike the mandate regardless of the force of argument in the way.” According to Jack Balkin, Judge Hudson could only make his case by “dredg[ing] up jurisprudence from the court's Lochner Era, which has been discredited since the New Deal.” The argument, Balkin concludes, is “remarkabl[y] weak.”

Critics of the law take the opposite view. To Randy Barnett, for example, the ruling is “a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company. According to Peter Wehner, former domestic policy advisor to President George W. Bush, argues that “Judge Hudson’s a serious judge and he has put into words, and into a legal decision, a fairly profound pronouncement, which is that a key element of Obama’s health care plan is unconstitutional, Ilya Somin similarly argues that to uphold the individual mandate “would give Congress virtually unlimited power to mandate anything it wants.” This would be both “dangerous and unconstitutional.”

This is an important debate, and I don't mean to minimize it here.  But to focus on the legal debate would be to miss what is far and away the much more interesting story and its many lessons.