No En Banc Appeal for FL v. DHHS

Called it here.

11th Circuit En Banc

The 'Will they or won't they' question for Affordable Care Act court action this week is whether the government will appeal the 11th circuit's ruling to the Supreme Court or to the full 11th circuit. The government's appeal is due on Monday.


First, let's review the basic history. The appellees are 26 states, headed by the Attorney General of Florida, who lost at the district court level. A 3 judge panel on the 11th circuit court reversed that decision, declaring that individual mandate is not supported by the commerce clause or the federal government's taxation power, but ruling that the rest of the law could stand without the mandate, possibly inviting Congress to use a different enforcement regime in the market to ensure universally affordable coverage without compulsion (e.g. a public option). The decision is here (pdf).


The first question that the government will answer in the question of where to turn for the appeal is 'who is the 11th circuit?' On the most basic level, the 11th circuit consists of Alabama, Georgia, and Florida. It's a fairly conservative region, but not quite as conservative as the 4th circuit traditionally. Of the active judges on the 11th circuit, one was appointed by Gerald Ford, one was appointed by Ronald Reagan, three were appointed by George Herbert Walker Bush, four were appointed by Bill Clinton, one was appointed by George Walker Bush, and 1 was appointed by President Obama. The decisions on the constitutionality of the Affordable Care Act have proceeded upon startlingly partisan lines, so the 6-5 Republican to Democrat split in a potential en banc hearing doesn't augur particularly well for the government.


A couple caveats apply. Judges appointed by Ford or the first President Bush may be more ideologically diverse than ones appointed by the second President Bush or Ronald Regan. cf: Souter versus Alito and Roberts. More traditional conservative values in judging philosophy, such as respect for precedent, might tend to be more present in older judges. Those factors may tilt more towards the government than the partisan split suggests.


On the other hand, they are completely outweighed by the particular history with this case: Judge Hull, a Clinton appointee, voted against the constitutionality of the individual mandate. The numbers don't look good for the government's legal team to turn to the 11th circuit.


If the government's goal in the litigation is to maximize the number of provisions which are left standing, letting the 11th circuit en banc weigh in could do more harm than good. It would be seriously surprising if the Supreme Court eventually refused to grant certiorari to this case. It is the most watched question before the federal courts at the moment. Even if the 11th circuit en banc reverse the 3 judge's panel ruling, the Supreme Court's inevitable say-so would moot the early reversal. Recent court watchers also have little belief that the conservative wing of the court would actually follow any of the doctrines that 'judicial deference' entail. If the Supreme Court conservatives prove to be partisan hacks as well, there is no reason to believe they will stick to the live issue before them. Even if all the circuit decisions pointed in the direction of "the Affordable Care Act's individual mandate is well within established commerce clause powers to regulate national affairs that the states separately are incompetent to confront," the Supreme Court's arrogant say-so could not be prevented.


However, allowing the current 11th circuit court ruling to stand does have on positive that a referral to the en banc court may wipe out. Liberals (or judicial restraint practitioners) on the Supreme Court may be able to extract a concession from Justice Kennedy, who could vote with the conservative majority invalidating the individual mandate, but could still exercise some restraint by forging a majority of judges who find that the individual mandate is severable from the broader Affordable Care Act. 5 judges can strike down the individual mandate, and another 5 can preserve the existing segments of the Affordable Care Act. If the en banc 11th circuit overturns the severability side of the panel's opinion and strikes down the entire law, there would be less pressure on Kennedy to maintain some restraint.


This is a highly superficial analysis- I'm sure the Department of Justice has looked in depth at each judge's voting history on the 11th circuit. The goal is to come out from the circuits either with opinions from the circuit level that agree with the government and are persuasive to a majority of the Supreme Court or opinons from the circuit level that find for the states but are utterly repugnant to the court. And then, of course, you have to hope that the Supreme Court actually cares about the constitution more than they do a partisan or narrow view of America.


On the bright side: there's been some personnel turnover since Bush v. Gore.

Reagan Judge a Either a Carroll or Burger Fan

The Judge Roger Vinson, who is presiding over FL v. DHHS is a fan of Alice in Wonderland. In his decision rejecting the government's motion to dismiss, he criticized the government's "Alice in Wonderland" argument that though Democrats in passing the bill describe the individual mandate tax provision as a penalty and not a tax, it is no different from a tax. The government would for the court to hold that it is a tax because that would sidestep the entire Commerce Clause debate. It looks like the Reagan appointee will not allow that argument.

What caught my eye, however, was the reference to Alice in Wonderland. In the majority opinion in Tennessee Valley Authority v. Hill 437 U.S. 153 (1978), Chief Justice Burger cited Humpty Dumpty in footnote 18 in dismissing a dissenter's argument.

When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean--neither more nor less." Through the Looking Glass, in The Complete Works of Lewis Carroll 196 (1939)

So, Does the PPACA Exceed Congressional Power?

As part of my effort to analyze the litigation attempting to block the Patient Protection and Affordable Care Act from taking effect, I've been walking through the recent Commerce Clause doctrine. I think we have enough background on the Court's opinions thus far to wade into the main issue of FL et al v. DHHS:

Does Congress have the authority to compel individuals to enter into an economic transaction?

This is precisely the question that Rivkin and Casey want the court to rule on. As noted in A Healthy Debate, the Congressional Research Service believes it is a novel question. In their words, the individual mandate is an "affirmative federal command that parties engage in a particular commercial activity." So, does Article I section 8 or any other part of the constitution allow the government to compel an economic transaction?

If we all think really hard, and have memories that last longer than 5 months, I think we can see a well-accepted constitutional example of such a transaction. Each year, nearly all Americans send the federal government a check, under threat of criminal prosecution, fines, and jail time. Though this is the language plaintiffs forward in their complaint to a federal judge, "The Act thus compels persons to perform an affirmative act or incur a penalty, simply on the basis that they exist and reside in the United States," taxation, surely, cannot be what Rivkin and Casey object to. What they must mean is: Can Congress compel through indirect means an economic transactions between individuals and a third party?

Rivkin and Casey forward the idea that because the activity that Congress is seeking to regulate on an individual level is a non-activity, it cannot be subject to federal action. Based on my reading of Lopez, Morrison, and Raich, the Court will not find this argument satisfying.

The Commerce Clause, Taxing, and the General Welfare

I have in my hot little hands a debate published in the Pennsylvania University Law Review about the Individual Mandate.  No less, the side that argues that te individual mandate is an unlawful power grab is written by the very same David Rivkin and Lee Casey who are arguing the plaintiff's case in Florida et al v. US DHHS: A Healthy Debate. The debate took place before final passage of the PPACA, so there is some uncertainty in the exact language at play.

Rivkin and Casey start out where I would in the Commerce Clause debate, noting that the Supreme Court has held that Congress has the power to pass laws to regulate "activities, [which] taken in the aggregate, substantially affect interstate commerce." Gonzales v. Raich, 545 U.S. 1,22 (2005). This standard was first applied in defense of a law which prevented a farmer from growing, but not selling wheat in Wickard v. Filburn, 317 U.S. 111 (1942).  Because the hoarding of wheat would drive prices down if every farmer did it, Congress could regulate the practice.

A Republican Form of Government

I've been liveblogging my reading of the twenty-state challenge to the health care reforms that Congress passed into law this year.  The Patient Protection and Affordable Care Act is undergoing a court challenge with arguments being heard today in Florida.

One of the least compelling arguments in the Florida et al. v United States Dept of Health and Human Services complaint thus far is paragraph 57:

57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States. 

It doesn't take much to see why this claim is ludicrous. Firstly, there is no reason to believe that unfunded mandates on the States are unconstitutional. In fact, they are a common way of accomplishing national goals. Their ubiquity has often led to grumbling from state legislators, but it goes to show that they are well-accepted by Congress and all Constitutional actors. Secondly, the structure of the Constitution suggests that this clause is not a limitation on the federal government. All limitations on Congressional prerogative are located in Article I, sec 9. This is not proof positive that the Republican Form of Government guarantee cannot be an injunction against the state, but it is a clue that McCollum might be barking up the wrong tree.

Health Care Reform in the Courts

I had intended to provide an omnibus discussion of Florida et al. v United States Department of Health and Human Services, the lawsuit on behalf of twenty states challenging the Patient Protection and Affordable Care Act being argued today in the United States District Court for the Northern District of Florida.

Reading through the plaintiff's complaint (pdf), authored by Florida AG Bill McCollum is proving an interesting exercise. Basically, there are three alleged issues:

1. The PPACA encroaches on individual liberty to choose to engage (or not to engage) in economic transactions with private corporations, exceeding Congressional Article I, sec. 8 authority.
2. The tax on individuals which enforces the mandate is an unlawful capitation under Article I, secs. 2 & 9.
3. Finally, the PPACA in its changes to Medicaid, represents an unlawful encroachment on State Sovereignty.

I will try, as the day goes on and I read more, to outline the debate surrounding this case as well as the analyze the arguments before the Court.  In a sense, I'm liveblogging my reading of the motions, case law, and relevant history.  Stay tuned to this space for an emerging story that I hope will be coherent as this case is important for the future of Commerce Clause authority.