The Law as a Political Tool: Bad-Faith Briefing in Healthcare Litigation

When it became uncool to discriminate against African-Americans and women, conservatives deployed a fallback position: that if discrimination is to be illegal, legislatures, not “unelected activist judges,” should make those decisions. Since then, rancor against the law, and especially the law as a tool of social change, has become a regular weapon in the conservative arsenal of freedom, deployed in modern times against the judiciary’s halting half-steps towards protecting other unpopular minorities –e.g.,  gays — from an irrationally hateful majority.

Perhaps unsurprisingly, this is the latest conservative principle to fall victim to the movement’s struggle to reinvent itself, and forge a new direction, while in exile. When they lost the fight against meaningful healthcare reform, right-wing attorneys general wasted no time appealing to the courts to overturn the law, in seeming violation of any notion of judicial restraint. The Supreme Court hasn’t invalidated a major federal regulatory regime in nearly 80 years — and the Patient Protection and Affordable Care Act isn’t a close enough call to break that trend. Time has only made it worse: while the attorneys general at least once had a good faith argument against the constitutionality of healthcare reform, the latest round of briefing in Ken Cuccinelli’s case barely makes those points before degenerating into something resembling a Tea Party Patriots pamphlet — complete with ahistorical recitations of foundational history. And that’s just the beginning of their troubles.

Cuccinelli attempts to characterize the federal courts’ prudential and constitutional limitations on lawsuits — mootness, standing, and other jurisdictional barriers to suit — as assaults on a state’s right to sue the sovereign (PDF page 12). But far from an aggrandizement of federal power, doctrines like standing are limitations on federal power, which prevent federal courts from hearing a case whose resolution would require the issuance of an advisory opinion — i.e., substantive lawmaking not incidental to resolution of a discrete case or controversy. See Antonin Scalia, “The Doctrine of Standing as an Essential Element of the Separation of Powers,” 17 Suffolk University Law Review 881 (1983).  Limitations on standing may on a case-by-case basis benefit the federal government, but they exist for the opposite purpose.

He goes on to blatantly mischaracterize the case’s main issue, by comparing the instant challenge to cases where, upon presentation of a justiciable controversy, the Supreme Court struck down laws posing a conflict between the states and the federal government. But if his cases stand for that general point, the cited authorities — McCullough v. Maryland and New York v. U.S. — substantially undercut his larger conclusion. McCullough reaffirmed federal hegemony over the states by invalidating Maryland’s attempt to destroy a comprehensive federal regulatory regime (sound familiar?); and New York v. U.S. simply stated that the federal government can’t force state officers to enact its policies. Because these citations do nothing to support his standing argument, and substantially undercut the later Commerce Clause argument, query whether they indicate bad lawyering or simply an attempt at deception.

It is to to the Commerce Clause argument that we now turn. While that argument began with some superficial air of plausibility, it takes a similar turn for the absurd, as Cuccinelli’s crack legal team appears to argue (I think — the relevant section is not a model of clarity) that a congressional regulation of commerce must itself qualify as commerce:

[Commerce’s] hallmarks are spontaneity and voluntary activity; not a command to buy something.

While that’s a way of getting around the Founding generation’s broad understanding of “commerce” — which the brief acknowledges and incorporates — that’s not what the Commerce Clause requires. The Commerce Clause requires that Congress regulate commerce. It doesn’t matter if the individual mandate isn’t itself a commercial activity; only that it regulates a commercial activity, which Cuccinelli appears to concede. It’s all very strange.

The remainder of the brief either treats Lochner v. New York as governing law — which it emphatically is not (one searches the brief in vain for citation to one of the many cases overruling it) — or as a desirable state of things.

With respect to citizens, the reach of the Commerce Clause was limited by the Fifth Amendment which, prior to 1938, was held to protect economic liberty through substantive due process.

That hasn’t been the way of things since West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and Lochner isn’t a more accurate representation of the Founders’ intent just because it’s older. That’s not how originalism works. Whether Cuccinelli’s arguing that Parrish was wrong, or that it doesn’t control, the argument depends on a fantasy, and for its failure to cite Parrish or comparable cases, is made dishonestly.

Plus, LEXIS citations to unpublished cases? Please. We all use Lexis for initial research and internal discussion, but where at all necessary, professionals cite to WestLaw in briefs. That’s just how it’s done.

Some of these failings can be explained by ineptitude — but not all of them. The rest just make clear that this litigation was conceived, and is now being executed, in bad faith, made only more shocking by conservatism’s supposed distaste for such exercises. Progressives routinely push the boundaries of the law, but we do it by acknowledging those boundaries’ existence, and showing how the past compels a novel future. We don’t bastardize originalism to reanimate dead case law, and we don’t glide over or mischaracterize away contrary authority. Seriously, disbar the whole team.



  1. “With respect to citizens, the reach of the Commerce Clause was limited by the Fifth Amendment which, prior to 1938, was held to protect economic liberty through substantive due process.”

    So in other words, Mr Cuccinelli envisions a return to the rampant judicial activism of the Taft Court? Very interesting.

  2. “When it became uncool to discriminate against African-Americans and women, conservatives deployed a fallback position…”

    Man, if only we could go back to those glory days of discriminating we conservatives all miss. Thanks for thr trip down memory lane Ames! I’m glad you reminded us that discrimination was a completely partisan pastime, because of course no liberal has ever discrimated against anyone. Imagine all the fun you all have missed out on.

    1. Kill the strawman!

    2. oneiroi · ·

      “if you can’t speak in generalizations then blogging and commenting is pointless” – Mike

      1. I have no problem with partisan generalizations. For example, I could say that Democrats love unions. I could also say Republicans love guns. When you’re talking about something as sinister as systemic racism however, and knowing the history of this country and the way that racism has always existed outside of politics first, it stops being a generalization and instead becomes a grossly inaccurate slur. If Ames or Phillip believe that one can generalize discrimination as strictly a Republican pastime then surely both forget their Southern roots.

        1. oneiroi · ·

          But he never used the word Republican in the entire post. It would be more faulty if he had, instead he used the term conservatives. Saying Republican means certain people, involved in a certain party. On the other hand, using the term conservatives just implies “people who generally like to uphold current conditions and oppose changes”. That isn’t equal through time.

          I think it’s safe to say, that conservatives, by definition, were the ones fighting against women’s and minority rights.

          It’s not really something Ames would need to go back and prove before writing this post.

          1. So Republicans aren’t racist…just conservatives. I find that equally offensive but I can see where a liberal wouldn’t.

            The problem is, when you all talk about resistance to minority and women’s rights, you have to be more specific. If you’re talking about the right for blacks to be in the military or vote then no, it’s not a correct statement. If you’re talking about resistance to unneccessary programs like affirmative action or hate crime laws, then yeah, we’re opposed. So maybe Ames needs to be more specific because i know he understands his history enough to know that conservatives HAVE supported minorities when it counted the most.

          2. oneiroi · ·

            I can say, conservatives really appreciated having slaves, that doesn’t then mean that all the conservatives today wishes they had slaves. That would be silly.

            Now if I said, all Republicans appreciate having slaves, I feel like that’s slightly different since it’s an established institution that still exists and is codified.

            I can say, the liberals of the the 1960’s wanted to have sex all the time and tons of abortions. That doesn’t necessarily imply that all liberals want sex and abortions now.

            I guess it’s splitting hairs, but I find your gripes about generalizations as that’s mostly all you do when you talk about liberals.

        2. oneiroi · ·

          Let me say, I see your point, when you said it, I was annoyed at the way you made gross generalizations about what liberals/conservatives want/are. Like you saying, liberals support immoral acts and leading to a moral decay in this country(ie your abortion comments), or some version thereof.

          Which to me seems much more of an egregious generalization than saying “Conservatives who protested the increased rights of women and African Americans used the following tactic”.

          1. Well as someone who is pro-life i DO find the support of broad access to abortion to be immoral. The thing is, I kind of feel like even a lot of liberals find abortion to be immoral too, even though they support it. Otherwise, why have folks like The Other Mike who are clearly liberal and clearly support abortion but try to explain away evidence that its used more often in liberal states as if that’s a bad thing. i don’t really understand that compulsion.

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