In Under-Reported D.C. Circuit Oral Argument, Prominent Republican Judges Suggest Novel Arguments for Upholding Health Care Law's Individual Mandate

September 26, 2011
Guest Post

By Simon Lazarus, Public Policy Counsel to the Federal Rights Project of the National Senior Citizens Law Center, frequent contributor to ACSblog, participant in ACS programs, and author of two ACS Issue Briefs on the legal challenges to the Affordable Care Act. Those Issue Briefs are available here and here.


Last Friday, Sept. 23, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on the constitutionality of the Affordable Care Act (ACA) individual mandate to carry health insurance or pay a tax penalty. Major media barely covered the event, perhaps afflicted by ACA litigation fatigue (three circuits have already ruled on the issue). This is unfortunate, because, from the outset, the argument took an unexpected turn, with potentially significant implications for the outcome of the ACA cases.

The two Republicans on the three-judge panel, Reagan appointee Laurence Silberman and Bush II appointee Brett Kavanaugh, displayed in-depth grasp and even sympathy for arguments supporting the mandate. During the first half of the session, when attorney Edward White of the conservative advocacy group American Center for Law & Justice outlined his case for overturning the mandate, they fired more, and more aggressive, questions than did the third member of the panel, Jimmy Carter appointee Harry Edwards. To be sure, when the Justice Department’s turn came, the two Republican appointees threw equally probing – if somewhat more predictable – challenges at Deputy Assistant Attorney General Beth Brinkmann. Moreover, they appeared less than satisfied with Brinkmann’s answers on some key issues. But, against the backdrop of opinions upholding the mandate by respected Republican judges Stanley Marcus (in dissent on the Eleventh Circuit) and, especially, Jeffrey Sutton (in the majority on the Sixth Circuit), Friday’s argument suggests that, among Republican appellate judges with legal and political throw-weight – which both Silberman and Kavanaugh possess – there may be substantial resistance to overturning the ACA mandate. At a minimum, neither judge showed an appetite for reflexively parroting Republican talking points, along the lines of the Virginia and Florida district court decisions that struck the mandate down last December and January.

At very start of his argument, ACLJ’s White was challenged by Judge Kavanaugh with the core claim stressed by ACA supporters, that the mandate is essential to the central ACA goal of ensuring the availability of affordable health insurance coverage for all persons, without regard to preexisting medical conditions or health status generally. Kavanaugh brought up facts detailed in a supporting amicus curiae brief authored by the Center for American Progress and the National Senior Citizens Law Center on behalf of thirteen patient advocacy groups; this brief recounted that, prior to Congress’ drafting of the ACA, state experience demonstrated that mandatory insurance is a necessary complement to mandatory coverage of pre-existing conditions. Among the several states which have legislated such mandatory coverage, Kavanaugh noted, only one, Massachusetts, has succeeded in doing so without sending insurance premiums through the roof or driving insurers from the market altogether; Massachusetts was the only state to enact an ACA-like individual mandate to purchase insurance. 

Kavanaugh also put the ACA mandate and the legal challenges in a novel historical perspective.  As analyzed in Ian Milhiser’s excellent post on ThinkProgress, Kavanaugh analogized the issue to challenges to New Deal programs in the mid-1930s, when he suggested, the nation adopted government-run insurance programs as its preferred approach to the social safety net.  What if, he asked, the ACA mandate is the leading edge of a new trend – creating privatized social insurance programs with individual mandates to contribute?  “Why,” he asked, “should courts get in the middle of that?” An  ABC-TV report interpreted Kavanaugh’s suggestion as simply a new twist on the familiar “slippery slope” refrain of conservative ACA opponents – that upholding the mandate will open floodgates to copycat federal requirements to buy broccoli or General Motors cars, or in this case, private retirement plans. But it seems unlikely that that is the spin Kavanaugh intended. Quite plausibly, he could be concerned about setting a precedent potentially adverse to government-mandated private social insurance programs – a possible variant of a template widely favored by conservative policy wonks of his generation. After all, Kavanaugh served as Deputy White House Counsel to a President who proposed a semi- privatization revamp of Social Security. 

Judge Silberman’s most positive nod to ACA supporters was his suggestion to White, which he pressed repeatedly, that the 1942 landmark case, Wickard v. Filburn, actually represented a more extreme extension of Congress’ power to regulate interstate commerce than the ACA mandate.  In Wickard, the Court upheld a federal agency order that an individual farmer cease growing wheat for his own family’s use – on the theory that, in the aggregate, similar decisions would affect the market price of wheat, which the federal statute in question sought to control.  Silberman suggested that this restriction was actually more drastic than requiring individuals to purchase health insurance they are highly likely to need to use (in essence, the Department’s frame for the mandate).  Further, Silberman suggested that Wickard was itself a kind of mandate, since it effectively forced the plaintiff-farmer in that case to buy wheat (i.e., a commercial product) on the market.

Also noteworthy was Judge Kavanaugh’s apparent sympathy for the contention that suits to enjoin implementation of the ACA mandate are barred by the federal Tax Anti-Injunction Act (AIA). The AIA prohibits any pre-enforcement suit to “restrain . . . the assessment or collection” of taxes; it gives persons who wish to challenge the legality of taxes two options: pay the tax and sue for a refund, or decline to pay and raise the legal argument against the tax as a defense when the government comes after them.  For over a year after the suits were filed, this argument attracted no support from any judge, and was eventually abandoned by the Department itself. But earlier this month, the Fourth Circuit surprised the parties and observers by ruling that the AIA is in fact applicable, relying in part on an amicus curiae brief brief filed in the DC Circuit case by George Washington University law faculty member Alan Morrison on behalf of two former IRS commissioners. Hence, the Fourth Circuit ruled, courts have no jurisdiction to hear challenges until the mandate goes into effect and attempts are made to collect penalties for non-compliance; that, as Judge Kavanaugh observed Friday morning, cannot occur until April 2015. Judge Silberman also seemed to take the AIA argument seriously; however, by the end of the session, he appeared to favor the view that the statutory language mandating the carrying of health insurance was legally separate from the penalty provisions enforcing it, and, hence, presumably, can be separately challenged.

Judge Edwards did not express himself on the AIA issue. But he did indicate clearly that, under the Supreme Court’s well-established precedents requiring that federal laws must be upheld wherever a rational basis can be shown for Congress’ decision that they are necessary to implement its authority to regulate commerce, the plaintiffs “have a hard way to go” to prevail. 

As noted above, Judges Kavanaugh and Silberman appeared dissatisfied with DOJ attorney Brinkmann’s efforts to meet their request for a “limiting principle” putting judicially enforceable boundaries around Congress’ commerce power. In addition, they noted that the fact that Congress had never enacted a provision quite like the ACA mandate might be an appropriate basis for judges to set aside the presumption of constitutionality normally to be accorded to laws passed by Congress. Judge Kavanaugh echoed a point stressed by Sixth Circuit Judge Sutton in his above-noted opinion upholding the mandate: there is, he noted, no real-world difference between a tax credit incentive to purchase insurance – widely acknowledged to be constitutional – and the ACA mandate, which imposes a tax penalty for not carrying insurance. However, Kavanaugh also observed that there could nevertheless be some “force” to the legal distinction between an incentive and a mandate.

Judge Sutton’s opinion was referenced at various points by all three members of the panel – a seeming confirmation of its resonance.

One issue was notably absent from the hour and a half of intensive probing and dispute. That was the “severability” question – i.e., if the individual mandate is struck down, what other provisions of the Act, if any, must fall with it, because Congress would not have enacted them without the mandate provision. The fact that none of the judges were interested enough in hearing counsel discuss severability might – might – be an indication that none of them is seriously contemplating ruling the mandate invalid.  Or not.