Overruled (28 page)

A little over six months later, on August 11, the U.S. Court of Appeals for the Eleventh Circuit partially affirmed Vinson's ruling, voting to strike down the individual mandate but allowing the rest of the ACA 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,”
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the Eleventh Circuit declared.

It was a major blow to the Obama administration, which just two months earlier had won a resounding victory for the health care law at the U.S. Court of Appeals for the Sixth Circuit. In that earlier case, conservative Judge Jeffrey Sutton, a George W. Bush appointee and former clerk to Justice Antonin Scalia, had surprised many observers by voting with the majority to uphold the ACA. One reason he did so, Sutton explained, was because of judicial restraint. “Time will assuredly bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation,” Sutton wrote, “allowing the peoples' political representatives, rather than their judges, to have the primary say over its utility.”
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Because the Sixth and Eleventh Circuits were now in open disagreement, the Supreme Court was virtually guaranteed to step in and resolve the split. In the meantime, the Fourth 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 made the announcement everyone was waiting for: The Court would hear oral arguments the following year to determine the constitutionality of the Affordable Care Act.

The Stakes

Oral arguments were scheduled to run for a modern record of five and a half hours (later expanded to six hours) spread out over the course of 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 ACA 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.”
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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 ACA would have to wait until 2015, when the mandate was scheduled to take effect. The Court set aside ninety 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 ACA lacked a severability clause, the whole law must fall if the mandate is ruled unconstitutional. The Supreme Court reserved ninety 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 ACA's expansion of Medicaid, the joint federal-state health care program for the poor, represent an unconstitutionally coercive use of Congress's 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 ACA's controversial centerpiece: the individual mandate.

Judicial Modesty

To prevail, the Obama administration needed to persuade at least one of the Supreme Court's five right-leaning justices to uphold the ACA. Conventional wisdom quickly settled on the most likely candidate. “The fate of health care reform is where it was yesterday,” announced
Slate
reporter Dave Weigel, “in the hands of Supreme Court Justice Anthony Kennedy.”
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Time
magazine made the same confident prediction, adorning its June 18, 2012, issue with a close-up of Kennedy's face under the blaring headline, “From Gay Marriage to Obamacare, Justice Anthony Kennedy Is the Decider.”
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Kennedy, a perennial swing vote on the Court, was indeed a potential ally for the federal government. But the Obama administration had an equally plausible ally in the form of Chief Justice John Roberts—a fact many observers failed to grasp at the time. The evidence, however, was right there in his record. For example, 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 broad understanding of federal power. The health care case presented the chief justice with a similar opportunity.

Then there's the issue of judicial restraint. During his 2005 Senate confirmation hearings, Roberts repeatedly stressed his belief that the Supreme Court should practice “judicial modesty,” a respect for precedent and consensus he extended even to the abortion-legalizing
Roe v. Wade,
a case Roberts conceded to be “the settled law of the land.”
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He made a related point about
Kelo v. City of New London,
the 2005 opinion affirming the use of eminent domain to broaden the local tax base. Responding to a statement by Republican Senator Sam Brownback of Kansas, who described
Kelo
as a disastrous ruling that “really shocked the system” and inspired “great criticism,”
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Roberts pointed to the existence of post-
Kelo
legislation aimed at protecting property rights as “a very appropriate approach to consider.” In other words, Roberts explained, the Supreme Court's ruling “leaves the ball in the court of the legislature, and I think it's reflective of what is often the case and people sometimes lose sight of, that this body [Congress] and legislative bodies in the States are protectors of people's rights as well.”
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It was a subtle nod to judicial restraint—the idea that people should seek relief at the ballot box, not at the courthouse—and there's no doubt the savvy chief justice-to-be knew exactly what he was saying. For well over a century, prominent legal figures ranging from
Oliver Wendell Holmes to Learned Hand to Robert Bork had made that very same argument. Roberts was signaling his own support for the same deferential philosophy.

To be sure, Roberts has also revealed a willingness to wield judicial power on other occasions. In the Supreme Court's 2010 ruling in
Citizens United v. Federal Election Commission,
for instance, Roberts joined the conservative majority in nullifying portions of several campaign finance regulations and overruling one of the Supreme Court's previous campaign finance decisions. Not exactly a deferential maneuver. Yet even then, Roberts still made a point of reiterating his commitment to modesty, writing a separate concurring opinion in
Citizens United
“to address the important principles of judicial restraint and
stare decisis
implicated in this case.”
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Those principles remain core judicial values, Roberts stressed, but “there is a difference between judicial restraint and judicial abdication.”
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For instance, “if adherence to a precedent actually impedes the stable and orderly adjudication of future cases”—when, for example, “the precedent's validity is so hotly contested that it cannot reliably function as a basis for decision in future cases”
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—the Supreme Court is justified in taking action.

Which version of John Roberts would emerge in the health care case? Would it be the champion of judicial modesty, or the critic of judicial abdication? In an August 2011 column for Reason.com, I offered my own prediction: “Roberts may very well uphold the health care law as an act of judicial restraint.”
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Day One: “A Carefully Made Representation”

“We will hear argument this morning in case 11–398,
Department of Health and Human Services v. Florida.
”
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So declared Chief Justice
Roberts on the morning of March 26, 2012. The three-day legal marathon to determine the constitutionality of Obamacare was officially underway.

The focus of the first day's arguments was the Anti-Injunction Act, which says one cannot challenge a federal tax in court until that tax has been assessed and paid. If the Supreme Court was looking for a chance to dodge the bullet, this was it. By declaring the ACA to have imposed a tax, the Court could dismiss the entire case on jurisdictional grounds and avoid a bitter constitutional showdown. Yet none of the justices revealed the slightest interest in that approach during their questioning. The Supreme Court was clearly ready to rule on the fate of the individual mandate, the subject of the next day's oral arguments.

In that sense, day one was simply a warm-up for day two, the main event. But it was not without its moments of high drama, particularly during two rounds of questioning that previewed the legal fireworks to come. The first such exchange occurred at the one-minute mark of Solicitor General Donald Verrilli's time at the lectern.

“General Verrilli, today you're arguing that the penalty is not a tax,” said Justice Samuel Alito. “Tomorrow you're gonna be back and you'll be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”

“No, Justice Alito,”
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Verrilli was forced to admit. The Court had never done so. Alito had just honed in on what appeared to be a glaring inconsistency in the government's posture. In its briefs, the Obama administration had justified the individual mandate under both the Commerce Clause and the so-called taxing power, the constitutional provision authorizing Congress “to lay and collect taxes.” Yet here was the solicitor general telling the Supreme Court that the Anti-Injunction Act did
not
bar the litigation from proceeding because the individual
mandate did
not
impose a tax. As Alito pointed out, this was indeed a curious position to take. Is it a tax or isn't it a tax?

Several minutes later, Justice Sonia Sotomayor returned to that seeming inconsistency in the government's case. “Could we address, General, the question of whether there are any collateral consequences for the failure to buy—to not buy health insurance? Is the only consequence the payment of the penalty?” According to the National Federation of Independent Business, she went on, if an individual is on probation and “they don't buy health insurance, they'd be disobeying the law and could be subject to having their supervised release revoked.”

“That is not a correct reading of the statute,” Verrilli responded. “The only consequence that ensues is the tax penalty. And the—we have made a representation, and it was a carefully made representation, in our brief that it is the interpretation of the agencies charged with interpreting this statute, the Treasury Department, the Department of Health and Human Services, that there is no other consequence apart from the tax penalty.”
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In other words, perhaps the mandate requiring the purchase of health insurance was not a mandate requiring the purchase of health insurance after all. Verrilli would return to this argument on day two.

Day Two: “All Bets Are Off”

“People say I'm a libertarian,” Justice Anthony Kennedy told the
New York Times
in 2005. “I don't really know what that means.”
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Most libertarians would tend to agree with him. In 2004, when the libertarian lawyer Randy Barnett stood before the Supreme Court to explain why his client Angel Raich was not engaged in interstate commerce because her medical marijuana had been cultivated and consumed entirely within the state of California, Kennedy did not buy it. Several months later,
Kennedy joined Justice John Paul Stevens's majority opinion upholding the federal ban on marijuana as a valid exercise of congressional power under the Commerce Clause.
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But Kennedy seemed to have a different take on the reach of federal power when Solicitor General Verrilli made his case for the individual mandate on the second day of oral arguments over the ACA. Kennedy not only suggested that Verrilli had “a heavy burden of justification” but also described a mandated purchase as so “different from what we have in previous cases” that it “changes the relationship of the federal government to the individual in a very fundamental way.”
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At another point, however, Kennedy seemed inclined to accept the government's argument that all of us will at some point receive health care, so it is reasonable to regulate the manner in which we pay for it. In an exchange that occurred toward the end of that day's oral arguments, he referred to an uninsured young person as “uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” Then again, Kennedy prefaced that statement with yet another reference to the government's failure to articulate any limits on its own power. “The government tells us that's because the insurance market is unique,” he said. “And in the next case, it'll say the next market is unique.”
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Would Kennedy's willingness to accept the government's description of the health care market outweigh his obvious discomfort with the government's potentially unlimited assertion of congressional power? The nation would soon learn the answer.