For a Virginian like me, the symbolism was eerie. In the 1950s, Virginia asserted, by statute, that it would apply its "sovereignty" to block Brown v. Board of Education. Getchell's argument rang changes on nullification and interposition, echoing Calhoun, James J. Kilpatrick, and Harry Byrd.
But in 2011, Getchell--by luck of the draw--was trying to sell state "sovereignty" to a panel that included two African-American judges. One of them, Judge Andre Davis, actually laughed in his face. Getchell's increasingly pettish responses got him no closer to the chance to attack the health-care law. In the waning moment of his argument, he plaintively said, "I would like, in the couple of minutes I have left, to address some aspects of the merits."
Most of the merits argument, however, was carried by Mathew Staver, dean of the Liberty University School of Law. Staver, who argued first, spent his time before the court making one point: The health-care law seeks "to regulate for the first time in history non-economic inactivity" and thus exceeds Congress's Commerce Power.
Judge Motz asked a treetop-level question: "What is your definition of activity?"
"You have to be doing some kind of production, trade, exchange," Staver replied. "What we have here is individuals who want to remain out of the stream of commerce."
"That's not what your complaint says," Judge Motz says, noting that one of the Liberty plaintiffs expresses her desire to consume health-care services but wishes not to buy insurance.
Staver adopted an approach I caution my students against--he repeatedly changed the question to serve up the chance to answer it his way. "Well, managing your own physical being by eating properly is not an activity under the Commerce Clause," Staver told Judge Motz. "Managing your own activity by simply having natural remedies is not an activity. ... They want to be left alone."
The questioning went on and on, with each judge asking whether the facts of earlier cases or of hypothetical cases involved "activity" or "inactivity." Staver's point, over and over, was that while an earlier case involved activity, not buying health insurance was "inactivity." Judge Motz, presiding, gave Staver extra time (a rare event before an appellate court) to answer these questions, until the entire courtroom seemed to be trapped in a hellish legal version of the old Southern doggerel, "Pudding Tame, that's my name, ask me again and I'll tell you the same."
The "activity/inactivity" distinction is a classic 50,000-foot argument. The more facts are laid on the table, the less it appears that there is in fact a principled definition that between "activity" (growing wheat for home consumption, or lending money at usurious rates, both of which the Supreme Court has held to fall under the Commerce Power) and "inactivity" (refusing to pay in advance for health care you are virtually certain to consume). Katyal, arguing for the government, proposed to the court that "inactivity" is "just the word they use to describe the facts in a particular case."