Richmond, Virginia, may be the heart of the old confederacy. But it’s also the place where the federal government eventually indicted Jefferson Davis for treason. A plaque commemorating that event sits outside the entrance to the Fourth Circuit Court of Appeals—an omen for what transpired inside the courthouse on Tuesday, where three judges considered a pair of lawsuits from Virginians challenging an abuse of federal authority. The alleged abuse in this case is the individual mandate of the Affordable Care Act (ACA).
The other, more significant omen was the selection of the judges. Of the circuit’s 14 judges, a computer randomly selected two who had been appointed by President Obama and one who had appointed by President Clinton. Lower court decisions on the case have generally divided along partisan lines, with Democratic judges siding with the Federal government and Republicans with plaintiffs. So would the trio of Democratically appointed judges in Richmond keep the ACA dream alive?
It wasn’t necessarily pre-ordained: The circuit’s most liberal member took a more restrictive view of federal power than Supreme Court Chief Justice John Roberts in one noteworthy case. But, sure enough, the judges seemed sympathetic to the government.
Mathew Staver and E. Duncan Getchell, lawyers for the two plaintiffs, fielded much tougher questions than Neal Katyal, acting solicitor general for the Obama Administration. Sometimes, the judges seemed simply to restate Katyal’s arguments, only with more refinement and legal underpinning, more than once prompting Katyal to respond “exactly.” At another point, Judge Diana Gribbon Motz brought up a child support payment case that supported the government’s case, apparently surprising Katyal, who claimed not to be familiar with the case but pledged to look it up to prepare for future rounds of argument. Even experts can’t predict how judges will rule, based simply on their questions—and I’m no legal expert. But the content of the questions—not to mention the tone and temperament—suggested that the federal government will prevail in this venue. And I don’t seem to be the only observer who came away with that impression.
Of course, future arguments before more conservative judges, whether they sit in other circuits or on the Supreme Court, are unlikely to go so well for the federal government. And the case’s ultimate disposition could still turn, as some experts expect, simply on whether Anthony Kennedy—the Supreme Court’s proverbial swing vote—decides to break with his fellow Republican appointees or not. But Tuesday’s hearing ought to help correct the judicial and political narratives about this case.
An earlier pair of very strong decisions from very conservative judges left the impression that the Affordable Care Act was an extraordinary and unprecedented piece of legislation with, at best, shaky constitutional foundation. The three Fourth Circuit judges made it clear they see things quite differently: One of them actually asked assuredly whether one portion of the government’s legal justification for health care reform was a “slam dunk.” More important, perhaps, they seemed willing to entertain arguments from the government that even other judges approving the law seemed more eager to dispatch.
This was most apparent during the first argument, when Mathew Staver, dean of the Christian-denominational Liberty University, argued for the plaintiff in Liberty v. Geithner. The three judges barely let Staver get through a paragraph before jumping in with questions, focusing heavily on the supposed distinctions between “activity” and “inactivity.” It’s an essential piece of the legal challenge. The plaintiffs claim that the constitution’s Commerce Clause doesn’t give Washington the authority to regulate “inactivity”—which, in this case, they define as the decision not to get health insurance. The judges on Tuesday seemed to have different ideas. Motz, in particular, pressed Staver to explain the distinction—and never seemed satisfied with his answers, which included suggesting that “activity” was “something tangible.”
Of course, the government has always argued that its power to mandate health insurance also rests in other constitutional clauses, most notably the power to levy taxes in order to finance government operations. The conservative justices who ruled against the Affordable Care Act rejected this argument harshly and even their more liberal counterparts who upheld the law seemed less than enthusiastic about it. But the judges on Tuesday made a point of asking questions about it. While that’s not necessarily a sign they’re ready to endorse the argument, to these untrained ears it sounded like they weren’t ready to dismiss it, either. And many legal scholars, certainly, have suggested the law’s basis in the taxing power is clear.
The second hearing shifted the focus onto another issue that, particularly in the political debate, has gotten very little attention–even though legal scholars have long suggested it might be significant. That issue is “standing.” The second case, Virginia v. Sebelius, is the lawsuit Ken Cuccinelli organized and filed for his state. But it’s not clear that Virginia even has a right to bring this lawsuit on behalf of its citizens. (Some of the other lawsuits include among their plaintiffs individuals who claim that the mandate has forced or will force them to rearrange their financial affairs.)
E. Duncan Getchall, who spoke for Virginia in oral arguments, cited a new state law prohibiting anybody from being forced to buy insurance. But Katyal argued Virginia passed that law simply to block federal action, something courts have not traditionally allowed states to do, and the judges seemed to agree. During Katyal’s argument, Judge Davis asked, “Would a state that did that, with respect to any statute enacted by congress, lack standing? I don’t see a limiting principle. We talked a lot about limiting principles. How on earth can there be standing if all it takes is that the state enacts a statute and the [attorney general] comes forward?”
Katyal’s response? “Exactly, your honor.”
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