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.

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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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