In other news, a computer’s random selection of judges — two Obama appointees and a Clinton appointee — has pretty much guaranteed that the 4th circuit court will say that the individual mandate is constitutional. (Our judiciary is now so partisan that we arguably don’t need a trial once we know who the judges are, at least on major partisan issues.)
Of course, the courts aren’t supposed to care about the opportunistic wiggles of elected politicians. Which is why, when the campaign to redefine the individual mandate as unconstitutional began, conservative legal scholars laughed it off. “There is a less than 1 percent chance that the courts will invalidate the individual mandate,” said former Anthony Kennedy clerk Orin Kerr. But both sides were substantially underestimating the partisanship of the judiciary on a big, polarizing issue like this one. In the short term, that might be bad for the health-care law. In the long term, it’s bad for the judiciary, which looks less and less insulated from politics, and for the stability of future legislation, as the unexpected success of this campaign is going to lead to many more like it.
Circuit Judge Diana Gribbon Motz was persistent, but ultimately unsuccessful, in trying to get Liberty University law school dean Matthew D. Staver to say just what “activity” means in talking about Congress’s power to regulate the Nation’s commerce, including the health care part of commerce. Staver tried to make the notion clearer, saying that it was “something you could see, touch,” or “something tangible.” People who don’t want to buy health insurance, he argued, are engaged only in “idleness,” and that is something beyond Congress’s reach.
But Motz shot back that, when Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned “activity” as a crucial factor, and the Constitution itself does not mention the word, so, she kept asking, just what is it? “We’re trying to get you to give us some help,” the judge said, “with this distinction you think is so important.”
Circuit Judge Andre M. Davis wondered if “a mental process” is “activity,” obviously implying that a person’s specific choice not to buy insurance might be something Congress could regulate, even if “activity” were a necessary predicate. And, Davis asked, “You talked about ‘inactivity.’ Where in the cases do you find that?” Circuit Judge James A. Wynn, Jr., asked where the word “tangible” was in the Commerce Clause as a check on congressional power — and, of course, the word is not there. “Are you describing a ‘commodity clause,’ instead of a commerce clause?” Wynn also asked Staver.
(Staver, by the way, eventually argues that the critical activity/inactivity constitutional requirement is not actually stated in the Constitution, but is “implicit,” an idea that conservatives would sneer at if it came from a liberal, and vice versa. I’m listening to the audio of the oral argument as I write this; the argument over what exactly is “activity” is pretty entertaining.)2
The issue will (probably) eventually be decided in the Supreme Court, where the presence of unreliable conservative Kennedy means there’s actual doubt about how this issue will be decided.3
Beverly Mann argues that the real swing vote is Scalia. I don’t think Scalia’s a “swing vote,” per se, in that if Scalia votes to uphold the mandate then the vote will probably be 7 to 2 or 8 to 1 to uphold the mandate.
Scalia’s in a messy situation; he’s as partisan as any judge, and no doubt he’d like to hand a major defeat to the Democrats. But probably he’d also like to avoid the obvious hypocrisy of voting against his own past rulings (or inventing a new standard to distinguish this case from precedent). My guess is that Scalia will only be tempted to vote against the mandate if he can join a majority to strike down the mandate. Without the inducement of that partisan victory, why would Scalia embarrass himself?
That’s why I expect that the Court, when it decides, will either vote 5-4 to overturn the mandate, or vote 7-2 or even 8-1 that the mandate is constitutional.4
What I don’t expect is that the decision Scalia makes (as opposed to the rationalization for that decision) will have anything to do with the legal merits of the case. There’s an old-fashioned idea that there should be something other than partisanship going into how the Court decides major partisan issues. I haven’t believed that since Bush v Gore, but if you’re interested in the substantial arguments for the mandate’s constitutionality, I recommend this article by Andrew Koppelman.
- Oren Kerr’s post title sums it up amusingly: “Fourth Circuit Judges Baffled by the Proposed Activity/Inactivity Distinction.” [↩]
- I’m annoyed that I can’t just cut and paste the text of the oral arguments. How long will it take before we routinely use computers to create full transcripts of oral arguments and put them on the internet on the same day? [↩]
- Doesn’t the $1.8 million we spend annually paying the other eight judges seem like a waste? [↩]
- Of course, I’ll probably be proven wrong. Court predictors usually are. But for the record, if the vote does turn out to be 8-1 to support the mandate, I predict the one vote against it will be Thomas. [↩]