Tuesday, July 12, 2011

Ken Cuccinelli's take on the 6th Circuit upholding the Constitutionality of the individual mandate

Wherein Virginia Attorney General Ken Cuccinelli agrees with most of my analysis regarding the effect of the 6th Circuit opinion upholding the Constitutionality of the individual mandate:

From the Cuccinelli Compass July 12, 2011

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July 12, 2011

Dear Friends and Fellow Virginians,
I wanted to update you on the 6th Circuit's appellate ruling in the healthcare case.  There are a lot of nuances to the ruling, so let's start at the beginning and go through them one at a time.

Before I begin, I need to offer a disclaimer.  The way this case was decided, it ended up being very complex - so please bear with me.  


Remember that in an ordinary appeal (not to the Supreme Court), three judges sit together to decide the appellate case.

There are four appellate courts that have heard appeals in the healthcare cases: the 4th circuit (including Virginia); the 6th circuit; the 3rd circuit; and the 11th circuit (where our 26 sister states argued their case).  Only the 6th circuit has ruled so far.  We are awaiting rulings from the other three circuits.

Because three judges sit on each of these cases, an important procedural rule to be aware of is that the narrowest opinion in the majority is deemed the governing opinion of the court.  The rationale for this rule is that the narrowest opinion is the one that everyone in the majority agreed upon, and then other opinions 'added' to that 'base' opinion.  This is a simplification of course, but that is the governing rule of interpretation.

This rule of interpretation is important in the 6th circuit's case because all three judges wrote separate opinions in the case.

Guts of the Ruling: Individual Mandate

The three judge panel split 2-1, with two judges concluding that the individual mandate is constitutional, at least in this case.  One of those judges concluded that the mandate is constitutional, period.  However, Judge Sutton, who wrote the narrowest prevailing opinion, said only that it was constitutional in this case, but could be unconstitutional on a case by case basis in other cases - a very unusual ruling indeed.

Because of the unique approach taken by Judge Sutton, it seems unlikely that other judges (or Justices) will follow his approach.

More on Judge Sutton's opinion in a moment...

Other Guts: Taxing Power

While upholding the constitutionality of the individual mandate, the court voted 2-0 to reject the federal government's argument that the individual mandate and accompanying penalty could be sustained under Congress' taxing power.  You may ask, 'where was the third judge?'  The answer is that Judge Martin did not address the subject.

Judge Martin reasoned that he had already upheld the individual mandate under the commerce clause, so there was no need to address the taxing power argument.  However, both Judges Sutton and Graham did address the subject - and both rejected the feds' claim that the penalty was a 'tax' and thus fell under Congress' constitutional taxing power.

As a reminder, what the feds are arguing is that the penalty you must pay if you fail to buy the government-mandated health insurance is in fact a tax, not a penalty.  Furthermore, they say, that Congress has broad authority to levy taxes under Article I, section 8 of the constitution (this is certainly true).  Therefore, this reasoning goes, Congress was simply exercising its constitutional taxing power by imposing the penalty on those who fail to obey the government diktat to buy approved health insurance.

Put simply, the feds are saying that they can order you to do just about anything, then assess a financial penalty against you if you fail to act, and because they deem that penalty a tax, the whole thing is constitutional.  This is the most radical claim in the whole case - by far.

Those of you that have heard me speak on this matter have heard me say that I am loathe to make any specific predictions on how this case will go, but that I will predict that no judge or justice in America will agree with the federal government's radical taxing power argument.

So far, so good on that prediction!

The Scorecard

So here is how the judges lined up in this case:

Judge Martin: individual mandate IS constitutional; did not vote on taxing power.
Judge Sutton: individual mandate IS constitutional (in this case); penalty is NOT a tax.
Judge Graham: individual mandate is NOT constitutional; penalty is NOT a tax.

Judge Martin didn't vote on both issues because he knew that the feds only needed to win on one to sustain the statute, so he didn't vote on the tax issue.

Judge Sutton concluded only that the individual mandate was constitutional in this case, so because he presumably foresaw circumstances in which the individual mandate would not be constitutional, he proceeded to also rule on the tax question.

My Opinion of the Opinions

Two of the judges (Sutton and Graham) agreed that the exercise of power by the federal government in mandating individuals to buy government-approved health insurance is "unprecedented."  This is consistent with my view that for the federal government to win this case, the Supreme Court will have to go farther than it has ever gone before in expanding the commerce power of Congress.  However, for the states to prevail, the Court need not go beyond or overturn any prior commerce clause case.

Judges Sutton and Graham thus agreed that it is the feds that are seeking a change in the status of the law related to the commerce clause, and despite saying that such a change is only for the Supreme Court to undertake, Judge Sutton implicitly accepted the change anyway by ruling the mandate constitutional.

Judge Sutton unusually challenged the Supreme Court to take definite action.  Most strikingly he said that the Supreme Court "either should stop saying that a meaningful limit on Congress' commerce powers exists or prove that it is so."  Amen brother!

Additionally, both Judges Sutton and Graham spoke predictively about the 'direction' of Supreme Court cases related to the commerce clause and federalism - a decidedly unusual feature of a lower court opinion.

I am unfamiliar with any case ever that saw such brazen expectations of Supreme Court involvement explicitly written into the opinion.  It seems that virtually all of the trial and appellate judges who have touched this case are confident that it's going on to the Supreme Court.  Again, very unusual, but I do agree.

The two greatest weaknesses of the controlling opinion - in my humble opinion - are the failure to effectively digest and respond to the arguments about the distinction between regulating "activity" vs. "inactivity," and the mistake of not treating the case as a facial challenge to the statute.

That's all for now!  As always, we'll update you on the rulings as they come in.   

   Ken's Signature
Ken Cuccinelli, II
Attorney General of Virginia


My analysis on the opinion from June 29, 2011:

There is an apparent dissimilarity between the two analyses, I may explain it when I have more time.

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