The Justice Department's latest appellate brief in the fight over the constitutionality of the Patient Protection and Affordable Care Act is no fur-and-teeth affair. The first half of the 110-page filing, made April Fool's Day at the 11th U.S. Circuit Court of Appeals, reads like a policy paper on health care as much as it does a legal filing. And the second half of the document devotes itself to politely chronicling the number of ways in which the feds believe that U.S. District Judge Roger Vinson got it all wrong in January when he declared the Act unconstitutional in its entirety.
The tone of this document is mellow; the rhetoric far afield from where the ugly political discourse has taken the matter of health care reform (that's probably so, from the White House's perspective, for both legal and political reasons). Anyone who has followed the legal story of the Affordable Care Act, through all its trial court rulings over the past six months, will recognize the major points of contention offered now. But what is striking now is how soft federal lawyers took it with Judge Vinson, the Reagan appointee sitting in senior status in Northern Florida. You can go for pages without so much as a mention of the trial judge who has so forcefully threatened to shut the whole thing down.
From the looks of this brief, the White House and Justice Department must feel that to win these last few crucial court battles they must better educate the federal judiciary about the nature of the nation's health-care problem and the Care Act's professed role in helping solve it. They must have decided, wisely I think, that this constructive approach is more likely to succeed than any destructive attack they could level at Judge Vinson. This theory helps explain why this filing is not your typical appellate brief which draws blood against the trial judge but rather one whose authors are trying to pretend that the trial court's ruling either never occurred or doesn't matter.
In this respect, at least, it feels with this filing as though the Obama Administration is trying to make up for a major tactical mistake in the fight for the future of the Affordable Care Act. Remember all that criticism for the White House's failure to communicate to the American people the case for the health-care law? Well, after this, no one will be able to reasonably blame the Justice Department for failing to communicate its own case to this appeals court. And to the extent that Judge Vinson's narrative didn't fit the script, the feds simply brushed on past it on the way toward making their case-in-chief. (It's easier to do this, of course, when a trial judge strikes down a statute "as a matter of law" without holding a trial, as Judge Vinson did).
Take footnote 6, for example, from the government's brief. "The number without insurance has increased dramatically since 1970, when only 6 percent of Americans under age sixty-five had no coverage" (citation omitted), the feds tell the 11th Circuit. Today, they write, things are much, much worse:
The Nation has faced a serious shortage of affordable health insurance. More than 50 million Americans went without insurance in 2009. Rising premiums have priced many out of the market. Between 1999 and 2010, for example, average premiums for employer-sponsored family coverage increased 138 percent. Many others are excluded from coverage by "medical underwriting," a process by which insurers establish eligibility and premiums based on individual health status or history (citations omitted)
And so on. Like I said, there are a lot of familiar points and legal citations. But there were a couple of interesting points -- including two federal responses to Judge Vinson's ruling and rationale -- that merit mention here.
1. The Action-Inaction Distinction. The feds say Judge Vinson ignored Supreme Court precedent -- and not just any ol' precedent but precedent from Justice Anthony Kennedy, who likely will determine the face of the Act! -- when he declared that Congress was unlawfully trying to regulate local "inactivity" -- the decision by the uninsured not to get insurance. The feds wrote:
People without insurance are not "inactive"; they actively participate in the market for health care services. Indeed, millions of the uninsured participate by obtaining health care for which they cannot pay... The district court treated the minimum coverage requirement as if it were an end in itself that functioned only in the insurance market. Congress, however, viewed the requirement as a means of regulating payment for services in the health care market. That congressional judgment was not merely reasonable. It was correct. Health insurance is not bought for its own sake; it is bought to pay for medical expenses.
2. The Sky-is-Falling Argument. Mercifully, the Justice Department did not dignify itself with a response to Judge Vinson's "soon the federal government will make you eat broccoli" argument. Instead, the feds answered another float in the trial judge's parade of horribles. They wrote:
The district court saw no difference between a requirement to maintain insurance to pay for health care costs and a requirement to "buy a General Motors automobile." But the difference is evident. The automotive analogy would require a fictional world in which (1) every individual is necessarily in the car market because he may develop a sudden, unforeseen need for a car, and (2) is entitled to receive the car regardless of his ability to pay. Even then, a parallel statute would not require the purchase of a car but rather the purchase of a financial instrument to finance the purchase of a car (citation omitted).
3. States and the interstate effect. I may very well be wrong about this but the latest government brief seems to highlight the interconnectedness of state interests in the federal legislation more so than previous government filings. The feds wrote:
Regulation of health care and health insurance also implicates mobility between jobs and among states... Health insurance is often an element of employee compensation, and if employees put their insurance at risk if they change jobs, they may be "reluctant to switch jobs in the first place (a phenomenon known as 'job lock')." Thus, the prospect of losing employee health insurance may create obstructions to interstate mobility, which the Constitution generally, and the commerce power specifically, were designed to prevent.
Before the Affordable Care Act, this mobility created potential disincentives for individual states to adopt comprehensive reforms of their health care and health insurance markets. A state might reasonably have resisted providing more generous benefits or broader coverage than its neighboring states out of concern that it would become "a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose." Moreover, as the experience of state insurance regulators showed, a state considering reform of restrictive insurance practices might have worried that insurers -- mostly regional or national companies-- would respond to such regulation "simply by pulling up stakes" (particularly if the state reforms lacked a minimum coverage provision) (citations omitted)
Florida and company will within the next month or so file a brief explaining why Judge Vinson got it all right. Oral argument is set for June 8th. We might expect a decision by Labor Day, in time for the Affordable Care Act to make it onto the Supreme Court's docket for the 2011-2012 Term. We'll know then, I reckon, if the government's touchy-feely approach to Judge Vinson worked.