Evaluating the Department of Justice’s Reply to Fringe Healthcare Suits

Last week — yes, we’re late to the party — the Department of Justice filed its answer in one of the many groundless, politically-motivated lawsuits filed to enjoin the administration’s hard-won healthcare victory, the Patient Protection and Affordable Care Act. Clash occurs on the points we predicted, plus a few jurisdictional arguments (standing/ripeness), which look likely to be independently dispositive. A brief survey of the vital points (citations omitted):

Plaintiffs lack standing because any injury in fact is premature; or, alternately, the claim is not ripe:

Federal courts generally permit impact litigation — i.e., justiciable controversies aimed at rectifying a larger, systemic injustice, where vindicating the plaintiff’s rights is really just a means to an end — but only within the limits of Article III, to which conservatives regularly pay lip service. One of those limits is standing — which requires that plaintiffs present with an imminent, certain harm, redressable by a favorable verdict at law.

To be sure, plaintiffs proclaim their current intent not to obtain health insurance. But between now and 2014, changed health circumstances or other events may lead plaintiffs voluntarily to satisfy the minimum coverage provision by buying insurance (particularly if they qualify for subsidies provided elsewhere in the Act). They may also satisfy the provision by obtaining employment that includes a health insurance benefit. Alternatively, even if they do not obtain insurance, plaintiffs may have insufficient income in 2014 to be liable for any penalty.


The individual mandate is a valid exercise of the Commerce Clause:

The answer properly passes over Lopez and Morrison as not just distinguishable, but entirely off-topic:

Raich came after the Court’s decisions in Lopez and Morrison, and thus it highlights the central focus and outer boundaries of those cases. Unlike Raich, the Supreme Court concluded that neither Lopez nor Morrison involved the regulation of economic activity. And neither case, according to the Court, addressed a measure that was integral to a comprehensive scheme to regulate activities in interstate commerce.

This isn’t about an attempt to usurp the state’s police power by assertion of a tenuous Commerce Clause hook (which Lopez and Morrison were — they were good bills, but really, guys). It’s about the regulation of an economic market, for which the Commerce Clause was clearly designed:

Here, the statute regulates a broader — indeed, massive — interstate market in health care services.  On the basis of detailed findings, which were the product of extensive hearings and debate, the provision at issue addresses cost-shifting in those markets, quintessentially economic activity, and it operates as an essential part of a comprehensive, intricately interrelated regulatory scheme. The provision thus falls well within Congress’s established Commerce Clause powers.

It hits, too, the point that regulation of insurance markets isn’t new. It’s too long to duplicate, but don’t miss the truly epic footnote 11, citing ERISA, COBRA, HIPAA, the Mental Health Parity Act of 1996, the Newborns’ and Mothers’ Health Protection Act of 1996, the Women’s Health and Cancer Rights Act of 1998, and the Mental Health Parity and Addiction Equity Act of 2008 as examples of similar, uncontroversial, constitutional legislation premised on identical Commerce Clause theories (“Indeed, Congress has long regulated health insurance.”).

The individual mandate is a valid exercise of the taxing and spending power:

Taxing-to-coerce is not new to American law.

That the provision has a regulatory purpose does not place it beyond Congress’s taxing power. [. . . .]

So long as a statute is “productive of some revenue,” the courts will not second-guess Congress’s exercise of its taxing powers, and “will not undertake, by collateral inquiry as to the masure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution.  The minimum coverage provision will produce about $4 billion in annual revenue once it is fully in effect.  Thus, the provision produces revenue, alongside its regulatory purpose, which is all that Article I, Section 8, Clause 1 requires.

Maybe it should be, but that’s a different debate. Striking down the Act on this ground would be a stunning reversal and — dare we say it? — textbook “judicial activism.”

In summary…

Justice’s answer alerts the court to exactly what the complaint is — a hodgepodge of fringe theories, existing solely at the periphery of American law, and working a complete forfeiture of the notion that “judicial activism” belongs solely (or even partially) to the left. Our arguments for extensions of existing law are at least based on patterning — i.e., “this is like that, which you allow, so allow this too” — but this is an attempt to completely rewrite the federal system, overruling 90+ years of Commerce Clause jurisprudence in the process.

Kagan’s nomination gives the GOP a chance to look shocked when she eventually testifies that she’d uphold the health care Act, thus making it look like their radical anti-federalist theories are somehow colorable. They’re not. This is about as controversial as evolution. Well, about as controversial as evolution should be.

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