Supreme Court hearing surprises law professor

March 30, 2012
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When the U.S. Supreme Court held its hearing on the constitutionality of the individual mandate found in the Patient Protection and Affordable Care Act last week, Devon Schindler was jolted by comments from two of the court’s justices.

Schindler, who teaches constitutional law and health care regulation at Cooley Law School in Grand Rapids, said he was surprised at how vigorously Justice Anthony Kennedy questioned U.S. Solicitor General Donald Verrilli Jr., who represented the Obama administration. Kennedy has a reputation of being open minded and friendlier toward the federal government than his more conservative peers. But Schindler felt the justice revealed a different side last week.

“His questioning bordered on hostility, given some of his past rulings and some of his past views on the scope of the government’s power. I thought Justice Kennedy in his questioning would show a little more confidence in the government. In fact, he was quite aggressive and quite vigorous in challenging a number of the statements the government made,” said Schindler, who served as a law clerk for the 9th Circuit Court of Appeals earlier in his legal career.

The aggressiveness Kennedy showed sends a message that he may not consider the commerce clause in the U.S. Constitution as viable in this case. The clause, which is part of the original 1789 constitution, gives Congress the right to regulate interstate commerce and is seen by many of the law’s supporters as the reason lawmakers can require individuals to be covered by health insurance.

The direction that Justice Antonin Scalia took also surprised Schindler. Scalia wrote an opinion in 2005 — Gonzales v. Raich — on a case involving a California woman who grew marijuana for medical purposes in her backyard, a legal action under the state’s law. But her crop was seized and destroyed by federal agents. She sued and her case went to the Supreme Court. The court ruled against her, saying that if more people did what she did, then the supply and demand across state lines would be altered and it would violate interstate commerce. Scalia voted in the majority and wrote the winning opinion.

“From that case, he said, ‘Look, this is not economic activity. Somebody growing a little marijuana in their backyard is not economic activity. But I still think Congress can regulate it because if you grow pot in your backyard, some of it can leak out. It will cut down on demand because some won’t have to go out to the market and buy it. That, in turn, undermines a much larger regulation of the marijuana market,’” said Schindler.

The opinion Scalia wrote indicated he believes that even if an action isn’t seen as economic activity, Congress can still regulate that action in relation to the larger picture. Opponents of the PPACA have claimed that Congress can’t force people to buy health insurance because not buying something isn’t economic activity, so they feel Congress has no power over a non-purchase and the individual mandate isn’t constitutional. But Scalia, perhaps the court’s most conservative justice, ruled otherwise in 2005.

“So I thought Scalia would ask questions about that particular case because it was his opinion. At one point in my fantasy league, I thought this (vote) might even go 6-3 because Scalia has said government can come out and regulate non-economic activity, and failure to do so might undermine a larger constitutional regulation on interstate commerce,” said Schindler.

“Well, that’s PPACA. Unless you force people to purchase health care insurance, it undermines all your other regulations of the insurance market. The whole theory behind PPACA is to expand the insurance companies’ obligation of coverage dramatically. Well, if these younger, healthier people aren’t forced into the market, the price of insurance will skyrocket,” he added.

Instead, Scalia’s remarks largely went in other directions. He even brought up the issue of whether the government can force people to buy broccoli, as an extreme example of potential governmental power overreaching its limit. “I was surprised that Justice Scalia did not focus more on his opinion in Gonzales vs. Raich, where he ruled Congress has some authority to regulate non-economic activity.”

One thing that didn’t surprise Schindler came on the first day, when the Obama administration didn’t argue that the court should consider the Anti-Injunction Act of 1867, which primarily says a tax can’t be challenged until someone actually pays it.

Some consider the PPACA penalty for not buying insurance when it is affordable a tax, because it is reported on a 1040 return and is levied by the IRS. The tax wouldn’t be paid until 2015, a year after the law goes into full effect, so support for the 1867 law could prevent the high court from ruling on PPACA until then.

The administration, however, did argue for the Anti-Injunction Act at the appellate-court level. The 4th Circuit Court of Appeals in Richmond, Va., agreed. So did U.S. District Judge Brett Kavanaugh, a respected conservative who served in the George W. Bush administration and sits on the U.S. Court of Appeals for the D.C. Circuit. But other courts didn’t.

Schindler felt the government decided not to argue the Anti-Injunction Act because it needs to know the law’s status before 2015, and before a lot of resources are invested in getting PPACA off the ground in 2014. “Literally, millions of hours and millions of dollars are going into implementing this act,” he said.

“So the Obama administration wanted to know, as soon as possible, whether or not the act is constitutional because if it’s not, they have to start from square one. They don’t want to waste huge resources setting up a law to discover a few years from now that it’s unconstitutional,” he said.

The court also heard arguments last week as to whether the individual mandate can be severed from the rest of the act and if the federal government can expand Medicaid through its partnership with the states, even with Washington, D.C., picking up almost all the tab. Twenty-six states filed a lawsuit against PPACA, as did the National Federation of Independent Business.

The court is expected to rule on the case in June, and Schindler is less certain of which way the justices will go after last week’s actions. “Before the oral arguments, I was highly confident that the vote would be 5-4 in favor of PPACA,” said Schindler, who sees Kennedy as holding the deciding vote. “After the oral arguments, I’m hedging my bet.”

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