The DOJ's Affordable Care Act Filing: 5 Quick Takes

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Eleven weeks before the oral arguments of the century, both the Justice Department and its adversaries filed merit briefs Friday in the Affordable Care Act cases now pending before the United States Supreme Court. Between now and the last week of March, we will see many more court filings, comprising thousands of pages of gobbledygook, all of which will purport to offer the justices (or at least their law clerks) an angle worthy of serious evaluation, if not outright disposition, of the constitutional issues involved in this big, hot mess.

The good news? This is the beginning of the end. In the meantime, and just in time for playoff football this weekend, here are a few quick thoughts on the start of the next phase of the litigation-- the phase during which the parties finally make their main arguments to the justices. I'll focus first on the government's 63-page brief and I'll try to hit the other brief later in the weekend.

1. As it should be, for both political and legal purposes, the Justice Department's opening brief on the issue of the constitutionality of the ACA's "individual mandate" is heavy with reference to the timely notion of judicial deference to Congressional fiat. Not only is this theme necessary under the Commerce Clause of the Constitution, and the Court's prior precedent in this area, it's also wonderfully convenient from a political point of view for the Obama Administration and its allies. For example, here from the brief is a representative nut graph:

The Act's minimum coverage provision is a particularly well-adapted means of accomplishing Congress's concededly legitimate ends. It is necessary to effectuate Congress's comprehensive reforms of the insurance market, and is itself an economic regulation of the timing and method of financing the purchase of health care services. In both of these respects, the minimum cover-age provision regulates economic activity that substantially affects interstate commerce. Its links to interstate commerce are tangible, direct, and strong. See Comstock, 130 S. Ct. at 1967 (Kennedy, J., concurring). It is therefore well within the established scope of Congress's power.

Note which justice is identified in the above graph. This is no accident. Justice Kennedy likely will determine the outcome of the case (or, put another way, supporters of the Act almost certainly can't win without his vote). And yet at the same time, the Administration is able to pivot to voters and say: here we are, folks, the Democrats, asking the federal courts to respect the popular will as expressed in the language of the law. At a time when Republican presidential candidates are seeking Congressional supremacy over the federal courts, and decrying arrogant judges, this is a sweet place to be for Democratic message-makers.

2. The brief is heavy with reference and citation to the opinion by 6th U.S. Circuit Court Jeffrey Sutton, the appointee of President George W. Bush and former law clerk to Justice Antonin Scalia, who ruled in June that the Act is constitutional. Here's one:

The minimum coverage provision addresses those defects in the health care market. It creates a financial incentive (by means of a tax penalty) for uninsured participants in the health care market to internalize their own risks and costs, rather than externalizing them to others. This constitutes classic economic regulation under the commerce power. As Judge Sutton recognized, "[n]o one must pile 'inference upon inference,' Lopez , 514 U.S. at 567, to recognize that the national regulation of a $2.5 trillion industry, much of which is financed through 'health insurance . . . sold by national or regional insurance companies,' 42 U.S.C.A.§ 18091(a)(2)(B), is economic in nature." 651 F.3d at 558 (Sutton, J.)."Where," as is clearly the case here, such "economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained".

Here is my prediction: If the Affordable Care Act is held constitutional, and I think it will be, Judge Sutton will more fully emerge as a hero to supporters of the law. And, especially if the law ultimately works well, he and other conservative judges will be considered a hero to many more.

3. Opponents of the Act have made much of the "action/inaction" dichotomy. They believe that the new health care law unlawful seeks to regulate "inactivity"-- the decision not to buy health insurance. These opponents, who buy this argument, include a majority of the judges on a panel of the 11th U.S. Circuit Court of Appeals, which ruled in August that:

We are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court's Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress' ability to regulate commerce-- perhaps, in part, because it has never been faced with the type of regulation at issue here.

On Friday, the Justice Department devoted six pages of its long brief-- pages 47-52 if you are scoring at home-- to answering. "There is no textual support in the Commerce Clause for respondents' 'inactivity' limitation," the federal lawyers argue, and besides it wouldn't apply anyway:

First, the uninsured as a class are active in the market for health care, which they regularly seek and obtain. The minimum coverage provision merely regulates how individuals finance and pay for that active participation--requiring that they do so through insurance, rather than through attempted self-insurance with the backstop of shifting costs to others.

To me, the guts of the ideological argument over the Affordable Care Act are here, on pages 47-52, where lawyers contemplate the meaning of words like "action" and "inaction." Opponents of the new law, of course, will be able to cite chapter and verse of the 11th Circuit's ruling when they file their briefs in a few weeks.

4. Relatively speaking, I suspect, very few folks have paid attention to the argument made by the Justice Department that the Constitution gives the government the "taxing power" to enforce the "individual mandate." Like the issue of the Anti-Injunction Act, which I'll eventually get to as well along this trail, this tax issue is a sleeper. Here's one passage of the government's argument that twitched my ears a bit:

Each of these measures is a proper exercise of Congress's taxing power, and each reflects Congress's broad discretion to determine how much tax is owed. In particular, just as deductions, exemptions, and credits operate to reduce an individual taxpayer's federal income tax liability based on the personal circumstances of the tax-payer, the minimum coverage penalty operates to increase the taxpayer's total tax liability based on his individual circumstances. In that sense, the minimum coverage provision is valid not only as a tax in its own right but also as an adjunct to the income tax, as it merely provides an additional input in calculating the total amount owed on the taxpayer's income tax return.

Make of that what you will, Megan and Paul Krugman.

5. A sense of the room. If you are interested in this fight (and if you have read this far you probably are) you should spend the time to read this first brief and many of the other ones to come from all sides. This brief-- the tip of the spear, you could call it-- naturally offers the single most comprehensive legal view of the Administration's support of the Affordable Care Act. It's a confident brief. It makes you think, as all good briefs do, that the result is preordained. It's a brief that was written for Justice Kennedy. And in my view it likely told him what he needed to hear.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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