(Page 3 of 4)
But it was the Florida-led challenge that won big enough to reach the Supreme Court. Its first victory came on January 31, 2011, in a ruling by U.S. District Judge Roger Vinson. “Congress must operate within the bounds established by the Constitution,” Vinson declared, striking down the individual mandate for exceeding those bounds. Furthermore, Vinson ruled, because the PPACA did not include a so-called severability clause, which would have specified what happens to the rest of the law when a single provision is struck down, “the entire Act must be declared void.”
A little over six months later, on August 11, the U.S. Court of Appeals for the 11th Circuit partially affirmed Vinson’s ruling, voting to strike down the individual mandate but allowing the rest of the PPACA to stand. “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers,” the 11th Circuit declared.
Because a different federal appeals court, the 6th Circuit, had voted two months earlier to uphold the health care law, the Supreme Court was now virtually guaranteed to step in and resolve the split. In the meantime, the 4th Circuit voted to uphold the law on September 8 and the D.C. Circuit did likewise on November 8. Six days after the D.C. Circuit’s ruling, the Supreme Court announced that it would hear oral arguments in Department of Health and Human Services v. Florida the following year.
Oral arguments were scheduled to run for a modern record of five and a half hours (later expanded to six hours) spread out over three days: March 26, 27, and 28, 2012. In addition to the constitutionality of the individual mandate, the Court would consider three other issues.
The first was whether the legal challenge to the PPACA must be dismissed under the terms of the Anti-Injunction Act, an 1867 statute that says “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” In other words, a tax cannot be challenged in court until it has been assessed and paid. Did the “shared responsibility payment” imposed on people who disobey the individual mandate count as a tax, even though Congress specifically called it a penalty? If so, the legal challenge to the PPACA would have to wait until 2015, when the mandate was scheduled to take effect. The Court set aside 90 minutes for this question on March 26.
The second additional question concerned the issue of severability. In his January 2011 ruling, Judge Vinson held that because the PPACA lacked a severability clause, the whole law must fall if the mandate is ruled unconstitutional. The Supreme Court reserved 90 minutes on March 28 to hear arguments for and against that proposition. Later that same day, the Court would hear one final question: Does the PPACA’s expansion of Medicaid, the joint federal-state health care program for the poor, represent an unconstitutionally coercive use of Congress’ spending power? One hour was set aside for that.
But the main event was scheduled for the morning of March 27, when the Supreme Court would devote two full hours to the constitutionality of the PPACA’s controversial centerpiece: the individual mandate.
In Search of a Limiting Principle
A few days before this legal marathon began, I sought some Court-watching advice from a Washington lawyer who knows a thing or two about high-profile cases. Clark Neily is a senior attorney at the Institute for Justice, a libertarian public interest law firm. In his private capacity, he was one of the victorious lead attorneys in District of Columbia v. Heller, the landmark 2008 case in which the Supreme Court ruled definitively that the Second Amendment secures an individual right to keep and bear arms.
“If you’re looking for hand tipping during the arguments,” Neily told me, pay attention to how often “the justices keep going back to a question for the government: Namely, what is the limiting principle here? If Congress can do this, what are the things that Congress cannot do? That’s the thing I will be looking for.”
When the 11th Circuit had voted to strike down the individual mandate, it did so largely because the Obama administration failed to articulate a limiting principle for the federal government’s Commerce Clause powers. Even the D.C. Circuit, which upheld the PPACA, admitted that the government was asserting an essentially unlimited regulatory power. “The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles,” the D.C. Circuit said. “Indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.”
Solicitor General Donald Verrilli would have to come up with a better answer when he argued the case before the Supreme Court. According to the brief filed by the multistate challengers, “there is no way to uphold the individual mandate without doing irreparable damage to our basic constitutional system of governance.” At a minimum, the Court’s conservatives would expect the solicitor general to counter that claim by laying out a plausible limiting principle for congressional power under the Commerce Clause. If Verrilli did not, the individual mandate would be in jeopardy.
‘All Bets Are Off’
Verrilli ran into trouble right away. To prevail, he needed to win over at least one of the Supreme Court’s five right-leaning justices. The two most obvious candidates were Kennedy, who regularly sides with the Court’s liberal bloc, and Chief Justice John Roberts. The conservative Roberts may seem like an unlikely ally of the federal government, but consider his record: In the 2010 case United States v. Comstock, which posed the question of whether the Necessary and Proper Clause allowed federal officials to order the indefinite civil commitment of “sexually dangerous” persons who had already finished serving their prison sentences, Roberts sided with the Court’s liberals, endorsing a sweepingly broad understanding of congressional power.
Then there’s the issue of judicial restraint. During his 2005 Senate confirmation hearings, Roberts stressed his belief that the Supreme Court should practice “judicial modesty,” a respect for precedent and consensus that he extended even to Roe v. Wade, the 1973 decision that declared a constitutional right to abortion. He called Roe, a bête noire of conservatives, “the settled law of the Land.” Given the Court’s extremely broad Commerce Clause precedents in Wickard and Raich, the government had reason to believe Roberts would vote to uphold the individual mandate as an application of “settled law.”