Will the Supremes Uphold the Affordable Care Act?

The Supreme Court issued a new opinion today making Commerce Clause jurisprudence exceptionally clear. We now have a straightforward, simple test.

In light of the absurd district court opinion striking down the Affordable Care Act, the issue arises of how the Supreme Court will analyze the state attorneys general Commerce Clause claim.  Fortunately enough, the Supreme Court issued a new opinion today explaining its changed Commerce Clause jurisprudence, which makes the whole thing crystallline.  Check it out.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

11 thoughts on “Will the Supremes Uphold the Affordable Care Act?”

  1. That is more coherent than today's district court opinion, in which the judge proved the mandate is constitutional under the Necessary and Proper clause and then struck it down out of spite for no legal reason whatsoever. The only way to find the mandate nonseverable is precisely if it's necessary in exactly the sense that would validate it under the Necessary and Proper clause as an ancillary matter to a policy program otherwise within Congress's Commerce Clause power. The whole point of the Necessary and Proper clause is that to strike down a nonseverable portion of an otherwise constitutional law there needs to be a specific prohibition violated by that provision, not merely a lack of enumerated power sufficient to enact the provision on its own. Today's decision is about as legally coherent as Bush v Gore.

  2. Very funny.

    By the way, if memory serves, Congress apparently intentionally omitted the normal severability clause in PPACA. of course, I could have that backwards. Anyway, I recall commentators mentioning at the time that this would leave PPACA more vulnerable to court challenge.

  3. "The only way to find the mandate nonseverable is precisely if it’s necessary in exactly the sense that would validate it under the Necessary and Proper clause as an ancillary matter to a policy program otherwise within Congress’s Commerce Clause power."

    Having just finished reading the entire (long winded!) ruling, the judge's reasoning is that he had to strike down the entire thing, because, while the mandate was necessary to the legislative scheme, it wasn't proper, and it's not the "necessary OR proper" clause, it's the necessary AND proper clause; Legislation has to be BOTH to be constitutional under the clause. Congress doesn't get to do improper things under the N&P clause just because it claims it needs to.

    The reason he concluded that it's not "proper", is because the Supreme court had already ruled that, however expansive it's interpretation of the interstate commerce clause was, it wasn't prepared to take that last step, and declare the interstate commerce clause a grant of complete, general power to regulate EVERYTHING, no matter how distant it's relation to actual interstate commerce. And finding the mandate "proper" required finding exactly what the Supreme court had explicitly refused to: That there was no limit at all on the power to regulate interstate commerce.

    In short, that, if you want the power to force people to eat broccoli, get the Supreme court to give it to you, they haven't yet.

  4. "Proper" in "necessary and proper" means "not otherwise contrary to the Constitution." That has been the law at least since McCulloch v. Maryland.

    As has been often pointed out, the cry of "now there are NOES LIMITS!!! on the Commerce Clause!" is raised every time someone doesn't like a law enacted under it, going back at least to the Bank of the United States. There are no new arguments here. Bellmore's argument, and Vinson's, most resembles Thomas's dissent in Raich. As Orin Kerr points out, agreement with a Thomas dissent is not a particularly sure sign that one is following precedent.

  5. Having done a little fact checking (in accordance with this blog's purported theme), I find that my prior post was actually correct (I am as surprised as anyone else) and that the standard severability provision was omitted from PPACA. This means that Judge Vinson, having found rightly or wrongly that the individual mandate is unconstitutional (rightly IMO), was correct in throwing out the whole law. Besides shifting the burden of review to the other side, this presents the Administration with a Hobson's choice. One distasteful, but expeditious, option would be to sponsor repeal of the offending mandate, but this would change the already dubious CBO scoring in an unfavorable direction, etc., etc.

    Presumably, the Administration is being advised to obtain a stay of the Judge's ruling pending appeal. I hope they attempt that, rather than simply ignore the ruling and proceed with implementation as they first threatened. Such action would raise the question concerning the oath taken by various leaders of the Administration, including the President, to uphold the Constitution.

    I would also assume that the various governors in the 26 states that brought the lawsuit would now have the rationale to rein in their insurance commissioners and slam the brakes on the implementation steps. It will be most interesting to watch how this plays out.

  6. Redwave — The mere absence of a severability clause hardly implies that a piece of legislation is non-severable. The Supremes just last term refused refused to throw out all of SOx even though it lacks a severability clause just because one part of it is unconstitutional. Certainly, better drafting would have helped, but that hardly implies that the ACA can't be severed. And you can't read anything about Congressional intent simply due to the lack of severability clause; if anyone believes that, it's Scalia.

    Re insurance commissioners: that will vary from state to state, of course. Here in California, the insurance commissioner is directly elected and so doesn't answer to the Governor. I imagine that's the case elsewhere, although I don't know for sure.

  7. In Congress, the country is held hostage to a 60 vote requirement, which is nowhere in the Constitution. But, it is not enough to pass a complex piece of legislation through Congress; now, right-wing Republican hack judges have to regard every last provision as "proper".

    If Obama were not already on board with the notion that the Constitution mandates a government by the Corporations, for the Corporations, of the Corporations, I'd be worried that a fight would break out, now that rule of law is pretty much completely out the window. But, ultimately, I expect this is just another "hostage-taking" prior to yet another vast cave-in on implementation, that will take the Rube-Goldberg contraption of the ACA even further into dysfunctional reinforcement of the predatory state, instead of a reasonable measure to improve people's lives.

  8. “Redwave — The mere absence of a severability clause hardly implies that a piece of legislation is non-severable.”

    The AG arguing before the court in question that the legislation is non-severable might lead to that conclusion, though. The administration essentially played chicken with the judge, assuming he’d blink if they told him it was all or nothing. Surprise, he didn’t blink, and they got nothing.

  9. The parody has Thomas agreeing on using the commerce clause to regulate hippies, when of course Thomas dissented in Raich. Thomas would have no problem overturning Wickard v. Filburn.

  10. Mr. Zasloff,

    Though California’s Commissioner is elected,the majority of state insurance commissioners are appointed by the Governor, as in NY, Illinois, Texas, New Jersey, Pennsylvania, Ohio, Tennessee, New Mexico, Connecticut, Wisconsin, Alabama, etc.

    Other states among the minority that elect commissioners include North Carolina, Delaware, and Georgia.

    Though Florida’s Commissioner is appointed, it’s CFO is elected and shares NAIC membership with the Commissioner.

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