ThinkProgress filed this report from Richmond, Virginia.
A Fourth Circuit panel of Judges Diana Gribbon Motz, Andre Davis and James Wynn just finished hearing oral arguments in two lawsuits challenging the landmark Affordable Care Act. The first case was brought by Jerry Falwell’s Liberty University, and the second by Virginia’s right-wing Attorney General Ken Cuccinelli. While the court will likely not release an opinion for several weeks or months in these two cases, early signs are that the Affordable Care Act had a very good day.
The Text of the Constitution Actually Matters
The ACA’s opponents challenge the provision of the ACA which requires most Americans to either carry health insurance or pay slightly more income taxes. They claim, falsely, that Congress has never before passed a law that imposes a consequence on people who don’t buy a product, and that somehow makes this law unconstitutional.
The judges, however, were clearly bothered by the fact that this supposed ban on laws compelling people to take an action has no basis in the actual text of the Constitution. As Judge Davis put it, the “Constitution does not talk about activity.” Instead, the Constitution provides that Congress may “regulate Commerce . . . among the several states,” and the very first Supreme Court decision interpreting this language made clear that this power is “plenary,” meaning that Congress may choose whatever means it wishes to regulate interstate marketplaces such as the national health care market, so long as it does not violate another textual provision of the Constitution.
The ACA’s opponents dug themselves in a hole because they were unable to cite a single word of the Constitution that supports their claim that Congress cannot pass laws that supposedly “regulate inactivity.” Liberty University’s attorney dug himself even deeper when he tried to add yet another extra-textual limit to Congress’ power. Claiming that Congress can only regulate “tangible” product and not things like health insurance which are not physical. This claim directly conflicts with the Supreme Court’s opinions, and earned no sympathy from the three judges.
What Was Not Said
Cuccinelli doesn’t just claim that the ACA’s insurance coverage requirement must be struck down, he also claims — wrongly — that the entire statute must be struck down because it is not “severable” from that requirement. Significantly, however, the judges made no mention whatsoever of this claim — indeed, severabilty was not mentioned once during two hours of arguments. This is as clear a sign as any that the court will uphold the law, because the only reason to ignore the severability question entirely is if you think that it’s not going to come up because the whole law will be upheld.
Cuccinelli also has a “standing” problem. The Supreme Court held in Massachusetts v. EPA that the Constitution “prohibits” states from suing the federal government “to protect her citizens from the operation of federal statutes”—and Virginia’s lawsuit clearly tries to “protect” its citizens from the operation of a federal law. Nearly 100 percent of the arguments on Cuccinelli’s case were devoted to this standing question — a clear sign that the judges do not intend to reach the merits of his case.
Smoke and Mirrors
Ultimately, however, it’s not clear why this argument was anything other than smoke and mirrors, since it is very unlikely that the ACA’s opponents can find five votes on the Supreme Court. This reality was driven home by a few incredulous comments Judge Motz made about a case called United States v. Comstock.
Motz is considered a liberal judge, but she wrote the court of appeals decision in Comstock striking down a federal law permitting civil detention of sex offenders because the law exceeded Congress’ constitutional authority. The Supreme Court reversed, with Roberts in the majority. In other words, conservative Chief Justice Roberts takes a view of federal power that is much more expansive than the view embraced by one of the Fourth Circuit’s most liberal members.
Motz clearly felt burned by this experience. When one of the attorneys tried to explain the basis of the Court’s Comstock decision, she expressed fairly clear disagreement with the Court’s reasoning in Comstock. It also seemed that she felt burned by her experience being reversed by the Supreme Court, and spent a lot of time playing Devil’s advocate with the United States’ attorney to make sure that her understanding of the case was airtight. She even asked whether the word “regulate” in the Commerce Clause might provide a textual basis for the activity/inactivity distinction, although the Solicitor General ably deflected this concern by pointing out that there are two other provisions of the Constitution that allow the ACA to be enacted.
Ultimately, however, it is likely that Motz was merely trying to anticipate the inevitable attacks on her court’s decision when it does what it appears likely to do — uphold the ACA. Moreover, given Roberts’ vote in Comstock it is difficult to imagine that the Supreme Court will knock this law down.