Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Over at the Volokh Conspiracy, my colleague Randy Barnett, who's representing the private plaintiffs in the ACA case, has written a post focusing upon Justice Kennedy's expressed concern that in order for the Court to uphold section 5000A of the ACA, it might have to issue what Randy calls an "unbounded" opinion, one that would permit Congress to require the purchase of virtually any product--an outcome that Justice Kennedy fears would “change the relationship of the Federal Government to the individual in a very fundamental way,” in that the national government would "require the individual to do an affirmative act" (p.31 of the transcript).
Some have responded to Justice Kennedy's concern by questioning his premises--for example, by noting that Congress has always exercised its article I authorities to impose affirmative obligations on citizens, such as the duty to register for and to engage in military service; to serve on juries; to respond to census questions; to submit tax returns; etc.
I think Randy and other challengers--and perhaps Justice Kennedy, too--would then reformulate the novelty claim to refer not to requiring affirmative acts simplicitur, but instead, and more specifically, to an obligation to "act to go into commerce" (transcript p.11), an affirmative duty that is certainly more novel in federal law.
It's not clear why such a requirement of entering into commerce would, unlike other, more common affirmative obligations, “change the relationship of the Federal Government to the individual in a very fundamental way”; after all, the very same novel requirement did not appear to fundamentally change the relationship of Massachusetts to its citizens when Governor Romney and the Massachusetts legislature enacted it. In any event, it's not obvious that this statute implicates that concern, because the ACA does not create such a duty: If there is someone out there who does not already maintain insurance and who has a moral or other objection to "go[ing] into commerce" just yet (i.e., before that person "goes into commerce" to consume health care), section 5000A gives that person an alternative means of satisfying the legal obligation--namely, by making a "shared responsibility payment" to the government itself. (The plaintiffs argue that making such a payment does not relieve someone from the so-called legal "duty" imposed by the insurance-maintenance requirement. But that's not so. As the Solicitor General explained in the Anti-Injunction Act argument, such a payment satisfies one's legal obligation under the Act. For example, as a formal matter Congress exempted members of Indian ]ribes--who obtain their health care through the Indian Health Service--only from the "penalty" provision, not from the insurance-maintenance provision. It would be absurd, however, to conclude that all such tribal members are federal lawbreakers by virtue of the fact that they do not maintain health insurance. This and other examples make manifest Congress's obvious intent that one can equally satisfy the law by engaging in either of the two options offered in section 5000A.)
Indeed, at least some of the Justices appeared to acknowledge that if Congress had reworded the statute to impose the exact same choice but through a different formulation of words--for example, by inverting the order of the subsections, so that 5000A(a) required everyone to make a shared responsibility payment to the IRS, and 5000A(b) then exempted from that obligation anyone who maintains health insurance--it would be plainly constitutional.
For this and other reasons, my sense from the oral argument was that Justice Kennedy was concerned not only about the implications of upholding the constitutionality of the law, but also about the implications of a holding that section 5000A is unconstitutional. Most importantly, both he and the Chief Justice appeared to agree that there would be something deeply counterintuitive about such a holding in light of the undisputed fact--stressed by Justice Kagan throughout the argument, emphasized by the Solicitor General in his rebuttal, and acknowledged by the plaintiffs--that Congress could impose the same exact requirement of insurance purchase "at the point of sale," when the individual shows up at the proverbial (and the actual) hospital door to consume health care (as virtually everyone eventually will). For obvious reasons, however, some of which I discussed here, such a "point of sale" requirement would not solve--indeed, would exacerbate--the commercial problems Congress was legitimately endeavoring to address about the availability of affordable health care for all Americans.
But if Congress could impose the requirement at the point of sale without fundamentally altering the relationship between the federal government and its citizens, what deep constitutional principle prevents it from imposing the same requirement earlier, when it would have its intended effect? As Justice Kagan pressed Paul Clement, "it seems as though you're just talking about a matter of timing . . . . And Congress surely has it within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It's just a matter of timing."
Nevertheless, I think it is safe to assume Justice Kennedy is, in fact, concerned about any holding of the Court that would imply a plenary power of Congress to require someone to affirmatively engage in a commercial transaction with a nonstate actor. Accordingly, it is worthwhile to consider how the Court might formulate a holding that would address that concern, while at the same time drawing upon the intuition that the constitutionality of such an important piece of legislation should not turn on such a seemingly arbitrary question of timing--and the related recognition that the "point of sale" alternative does not characterize many of the other hypotheticals that troubled some of the Justices.
It is possible, I think, to articulate a principled holding in favor of the constitutionality of section 5000A that would not commit the Court to anything like the broad ramifications that troubled Justice Kennedy, including in particular the conclusion that Congress may require the purchase of virtually any product.
I'll offer two such holdings, the first based on the Commerce Clause, and the second baed on the Necessary & Proper Clause. The two could, moreover, be conjoined, so that the Court's holding would be limited further still, to cover only cases in which both sets of predicates are satisfied.
Limited Commerce Clause Holding:
Even assuming arguendo that Congress cannot require any and every purchase of goods or services under any circumstances (but cf. Judge Silberman's "regulate"-includes-"require" argument to the contrary in Seven-Sky), Congress does have the Commerce Clause authority to control the means and timing of payment for goods and services that persons will consume, particularly so as to assure that the consumers do in fact pay for the costs of such goods or services. Thus Congress can at a minimum require everyone either (i) to maintain insurance for goods or services that virtually everyone will consume, that the government guarantees, and that many of the consumers will not otherwise be able to pay for (which would thereby shift substantial costs to the public at large); or (ii) to make a modest payment to the government (IRS) to help cover the costs the public will incur if and when the individual consumes services for which she cannot pay.
Such a formulation would not commit the Court to holding that Congress can require any and every purchase. Nor would it even imply that Congress can require a purchase whenever "non-purchase" has a substantial effect of any kind on interstate commerce--the principle that Randy assumes Justice Kennedy would have to accept in order to uphold the statute, and one that might justify a required purchase of GM cars since the failure to do so "causes" Detroit's economic woes.
It is, instead, based simply on the following postulates:
-- the conclusion, accepted by all, that Congress could require one to purchase insurance to pay for health care "at the point of sale";
-- the fact that the government guarantees that one can receive the most expensive health-care services even if one does not have the resources to pay for them (or for insurance) at the point of sale;
-- the idea that if Congress can impose such a requirement at the point of sale, it can also impose the same requirement earlier, so as to allow the insurance-based system to work; and
-- the fact that although some small number of persons in the regulated class would never be subject to the "point of sale" requirement (e.g., if they die before ever arriving at any hospital door), there is no way for Congress in advance to determine who is within that tiny subset, and thus an across-the-board requirement is the least restrictive way of ensuring that the law serves its legitimate objectives, including the prevention of cost-shifting by those who will not be able to pay for the services they consume. (Notably, Congress did recognize that certain classes of persons, such as Christian Scientists and other religious objectors, would not consume the services, and therefore exempted them.) As I explained in my earlier post, this regulation is exponentially more correlated to the future economic transactions than was the possession ban the Court upheld in Raich, since in that earlier case only the marijuana possessed by a small percentage of the plaintiff class could be expected to leak out into the interstate market.
What is more, the limited holding set forth above would not require the Court to hold that Congress can require commercial transactions even in such limited circumstances, since it would depend in part upon Congress having also included an alternative option that standing alone would be well within its article I powers--namely, the shared responsibility payment. As New York v. United States demonstrates, 505 U.S. at 169-74, where Congress provides two options, only one of which would be within Congress's article I powers standing alone, offering such a choice does not violate fundamental principles of federalism.
* * * *
I can imagine Randy and other skeptics making two principal objections to this solution. But I don't think either of them should give serious pause:
1. At oral argument, the Chief Justice expressed concern that if Congress can require the regulated class to maintain health insurance in advance based on the fair assumption that they will inevitably consume health case (an assumption the Chief Justice appeared to accept), why wouldn't that same logic permit Congress to regulate that same class in any other way that might affect its inevitable health care consumption? (The Chief did not specify what sorts of laws he had in mind. Justice Scalia chimed in to offer the example of requiring everyone to join an exercise club.) It's a good and understandable question, since there is plenty of case law, from Jones & Laughlin to Wickard to Raich, establishing what Justice Kennedy described in his Lopez concurrence as Congress's authority to "regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy." And so perhaps Congress would have a wide berth to regulate the conduct of persons who will invariably consume a product or service so long as that regulation is reasonably related to affecting that inevitable consumption.
But the "minimalist" holding I sketched out above would necessarily lead to such a conclusion. The Court could instead stress that the regulation in this case is, in effect, ofthe commercial transaction itself--in particular, the way in which the services rendered will be paid for--and not simply of some other conduct (e.g., health club membership) that might have some attenuated, downstream effects on which services will eventually be used. The Court thus could leave for another day the question of whether Congress's virtually plenary power to regulate the activities of those already engaged in commercial transactions, or in the "commercial sphere," would apply equally to those who inevitably will be engaged in such transactions, or whether, instead, the Court should apply some sort of Lopez-like attenuation limitation on such authority when it is future, rather than present, commercial actors that are at issue.
2. My proposed minimalist holding would depend, in part, on the fact that the services the regulated class will inevitably consume are those that the state guarantees, without regard to ability to pay. I included that factor because otherwise a "point of sale" requirement of purchasing insurance would not involve the same sort of cost-shifting to the public fisc, since those who cannot afford the services or the insurance would simply go without the services. Randy seizes on that aspect of the case; he emphasizes, as did his co-counsel Mike Carvin at oral argument, that section 5000A requires maintenance of insurance that is not limited to unaffordable illness or catastrophic coverage, but that also includes, for example, coverage for newborn care, mental health and substance use disorder services, and prescription drugs. See 42 U.S.C. 18022(b). Randy suggests that this alleged overinclusiveness of the requirement--what he calls the "mismatch"--demonstrates that it is pretextual, i.e., that it's not truly designed to get at the problems on which my proposed minimalist holding would be predicated.
But that objection misunderstands why the required insurance must include coverage for such preventive care, in addition to the catastrophic care that the state guarantees. A requirement limited to insurance for catastrophic care would establish a perverse incentive to avoid preventive services, thereby increasing the incidence of acute and catastrophic medical needs, which are far more expensive to treat. It would, that is to say, increase the cost of health care--and thus of health insurance--dramatically. Accordingly, the ACA requires inclusion of such preventive care in the insurance that must be maintained, so as to lower the incidence and costs of the health care that the regulated class will inevitably consume.
Moreover, even if Randy and Mike Carvin were correct, and the preventive care coverage could not be justified under my proposed, or any other, limited holding, that would only mean that the Court should declare invalid those subsections of section 18022(b) that go beyond coverage for catastrophic care and other services that are government-guaranteed. Such an excision would likely have, at most, only a marginal impact on the cost of insurance premiums, since it is of course catastrophic and longterm care--the services the state and federal governments guarantee--that account for the lion's share of uncompensated health care costs, and of the cost of health insurance.
Limited Necessary & Proper Holding
If Justice Kennedy and other Justices remained concerned about the possible ramifications of a stand-alone Commerce Clause holding, they could alternatively rely upon Congress's Necessary and Proper authority, in a holding that would not have any greater precedential impact than the Court's holding in Comstock. As I explained at length in my earlier post, the Court could simply hold that section 5000A is a necessary and proper means of carrying into execution the Guaranteed Issue and Community Rating nondiscrimination provisions that are at the heart of the ACA and that all acknowledge are within Congress's article I authority.
Paul Clement put the point precisely right in his severability argument: "As Congress found and the Federal Government concedes, the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation. And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended; they would actually counteract Congress's basic goal of providing patient protection but also affordable care. [I]f you do not have the individual mandate . . . community rating and guaranteed issue will cause the cost of premiums to skyrocket."
Even Justice Scalia appeared to agree that section 5000A is "necessary" to the carrying out of those core provisions. He suggested, however (see pp.27-28 of Tuesday's argument transcript), that it is not "proper" because "it violates an . . . evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers." If this were correct--that is to say, if adoption of the Necessary and Proper argument the government has proposed, and that I described earlier, would in fact mean that Congress has unlimited powers--then it would hardly be the sort of narrow or limited holding that might give Justice Kennedy comfort.
But such a holding would have no such implications. As I wrote earlier, "[n]othing about the rationales on which the government is relying would establish a federal police power. The government is not arguing that Congress can regulate any and all activities merely because they are 'related to the economic productivity of individual citizens,' Lopez, 514 U.S. at 564, or because they have aggregate effects upon the national economy; and therefore its rationales would not authorize direct federal regulation of violent criminal conduct, family law subjects (including marriage, divorce, and child custody), and local education, id. Accepting the government’s arguments would not, in particular, affect the outcomes in Lopez and Morrison." Nor would the Necessary & Proper holding proposed by the government even establish a much more limited congressional power (far short of a general police power) to require purchase of any and every product or service, especially if, as I have suggested, that holding is conjoined with the limited Commerce Clause holding described above, such that it is focused upon the regulation of the manner in which persons will pay for particular commercial services (health care) they will invariably use—a commercial activity about which they have no real choice. The regulation here, in other words, is of actors in the commercial sphere, and the “compelled purchase” is merely a regulation of how they will pay for the services they will use—the most costly of which they would be legally entitled to consume even if they had no ability to pay. A Necessary & Proper decision limited to such circumstances, and tied to the Guaranteed Issue and Community Rating regulations, would not have remotely the unlimited ramifications Justice Scalia suggested.
Moreover, even if the Court were to adopt the sorts of limitations on the Necessary and Proper authority that Justice Kennedy himself suggested in his Comstock concurrence, section 5000A would not transgress those limitations.
-- The connection between section 5000A and the proper carrying out of the Guaranteed Issue and Community Rating provisions would not be speculative, based only on judicial supposition (as would be sufficient under traditional "rational basis" review); instead, there "is a demonstrated link in fact, based on empirical demonstration," Comstock, 130 S. Ct at 1967 (Kennedy, J., concurring in the judgment), that the latter require the former in order to work--namely, the experience in the states under regimes that did and did not include such a requirement. The "strength of the chain," id. at 1966, in other words, is very strong, as Paul Clement agreed.
-- Section 5550A does not "compromise" any "essential attributes of state sovereignty," id. at 1967. In particular, it does not commandeer the states to regulate their citizens in accord with federal dictates, as in New York and Printz; nor does it "supersede the right and responsibility of the States," id. at 1968, to provide additional means of ensuring medical care to their residents, or otherwise "intrude upon functions and duties traditionally committed to the State," id.
-- Finally, the nondiscrimination provisions are not a "mere artifice," id., designed to bootstrap Congress into having the power to enact section 5550A. As I wrote earlier, such a description of the Act would "get things exactly backwards. . . . To suggest that Congress enacted the Community Rating and Guaranteed Issue provisions in order to expand its constitutional authority to enact section 5000A is . . . a fundamental misunderstanding of the ACA and its history—akin to the suggestion that Congress enacted the underlying criminal laws in Comstock, and incarcerated felons for decades on end, simply in order to provide a justification for a federal civil commitment regime that it otherwise would not have had the article I authority to enact."