By Robert Schapiro, a Professor of Law and Associate Vice Provost for Academic Affairs at Emory University.
Though tough questions abounded, supporters of the constitutionality of the health care reform statute received some encouraging signs at the oral argument this morning in the United States Court of Appeals for the Eleventh Circuit. The panel, consisting of Chief Judge Joel Dubina and Judges Frank Hull and Stanley Marcus, grilled both sides, but a majority seemed to understand the law more within the framework suggested by acting Solicitor General Neal Katyal, who defended the law’s constitutionality.
Most of the argument focused on the “individual mandate,” a provision of the statute that will eventually require most people either to purchase health insurance or to pay a fee. In this case, 26 states, along with some private parties, assert that the mandate exceeds the powers of the national government. Supporters of the law argue that the individual mandate lies well within Congress’s constitutional authority to regulate interstate commerce. In January of this year, U.S. District Judge Roger Vinson agreed with the states and struck down the law in its entirety.
One central issue in the case is whether the individual mandate constitutes a regulation of economic activity. In United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court struck down congressional statutes because they sought to regulate noneconomic conduct -- guns in schools and violence against women. Relying on Lopez and Morrison, opponents of the health care law assert that the failure to purchase insurance is neither economic nor an activity and thus lies beyond congressional power.
Judge Hull appeared unpersuaded by this argument. She stated that she found the proposed distinction between activity and inactivity to be unhelpful. Throughout the argument, she also referred to the choice of whether to buy insurance as an economic decision. For good measure, she suggested that Lopez and Morrison had limited relevance to the case at hand.
If the individual mandate is considered to be a regulation of economic activity — the decision about whether to buy insurance -- and if Lopez and Morrison are distinguishable, Judge Hull should be voting to uphold the individual mandate.
Judge Marcus seemed intrigued by the hypothetical alternative of a federal statute that applied at the time of the provision of medical service, requiring everyone receiving care either to have insurance or to pay a penalty. Paul Clement, representing the states, agreed that such a plan would be constitutional. Judge Marcus then characterized this case as turning on the temporal issue of determining at what point the government could impose the insurance requirement.
Judge Marcus appeared generally sympathetic to Katyal’s argument that Congress should enjoy substantial deference about whether to apply the mandate at the time of service, as Clement conceded would be constitutional, or ahead of time, as the statute in fact does. That kind of deference would translate into a conclusion that the mandate lies within the Commerce Clause.
Another important issue is the relationship of the Commerce Clause to questions of individual liberty. Should the Commerce Clause be read against a background of limiting the overweening powers of the national government so as to protect individual liberty? If so, the potentially coercive nature of requiring someone to buy health insurance might suggest that Congress has overstepped the boundaries of its Commerce Clause power.
Judge Marcus appeared to reject this argument. He emphasized the need to distinguish between the Commerce Clause theory and a claim of individual liberty grounded in the Due Process Clause of the Fifth Amendment. That framing of the issue undercuts the challengers’ arguments that the individual mandate violates the Commerce Clause because it intrudes on personal liberties.
For his part, Katyal insisted that while all regulation restricts conduct to some extent, the individual mandate does not invade any constitutionally protected liberty. The law might “violate the constitution of Ayn Rand,” Katyal asserted, but not the Constitution of the United States.
Of course, it is difficult to make predictions based on questions at oral argument, and the opponents of the health care law could find some positive signs for their side, as well. In addition to challenging the individual mandate, the states also target the law’s expansion of Medicaid, which the states insist will result in huge additional state expenditures. The states assert that this expansion constitutes an unconstitutional coercion of state spending. No court has accepted this argument.
At the beginning of the session, presiding Judge Dubina asked the parties to focus on the Medicaid issue, as well as on the individual mandate. Judge Dubina emphasized that he believed the coercion argument represented well-established Supreme Court doctrine, although he acknowledged that courts have never applied the principle to strike down a conditional federal grant.
In addition, Judge Hull was very interested in the severability of the individual mandate. She seemed determined to establish that even without the individual mandate, the health care law would extend insurance coverage to many people. She suggested that this positive impact would justify severing the individual mandate, rather than following the district court in striking down the whole statute. If Judge Hull is inclined to uphold the statute under the Commerce Clause, why is she so concerned about severability? Does she doubt Judge Marcus’s vote and want a backup plan in case the panel strikes down the statute? Does she just want to express her disagreement with the District Court’s severability ruling? We will have to wait and see.