This lawsuit is not about broccoli. Yes, there were multiple forced servings of broccoli talk at the 4th Circuit Court of Appeals this morning, at the first appellate arguments over the Affordable Care Act. But Judge James A. Wynn Jr. was clear on this one metaphysical matter: "Of course, we are not dealing with broccoli here."
The appeal doesn't all come down to judicial politics, either, although everyone is already atwitter about the fact that the random, computer-selected, three-judge panel was comprised of three judges appointed by Democratic presidents: Diana Gribbon Motz, nominated by Bill Clinton in 1994, and Andre M. Davis and Wynn, both nominated by Obama in 2009. (Davis and Wynn were also nominated by Clinton in 2000 and 1999, but neither was confirmed. *) The case basically comes down to a search for limiting principles on congressional power and an attempt to understand whether something can be unconstitutional simply because it is unprecedented. The panel struggled for more than two hours about whether the so-called "individual mandate"—requiring people to purchase health insurance by 2014, or pay a penalty—lies far beyond the edges of congressional regulatory authority, or dead at the heart of it.
The appeals court heard the two arguments in a crowded Richmond courtroom this morning. Proving that Lady Justice has a wicked sense of stage direction, a four-car pileup outside the Lewis F. Powell Jr. Courthouse filled the streets with police cars, ambulances, and sirens, just as lawyers were lining up to enter the building. Attendees at a press conference about the urgent need for health-care reform could barely hear the speakers.
The first case was a suit brought by Liberty University, a religious college in Lynchburg, Va., challenging the individual mandate as a violation of both the Commerce Clause and religious freedom (it claims that the ACA forces taxpayers to finance abortions). Last fall, federal District Judge Norman Moon dismissed that suit, finding the mandate a permissible exercise of congressional power under the Commerce Clause, which allows Congress to regulate economic activity. * The second suit was brought by Virginia Attorney Gen. Ken Cuccinelli, claiming that the ACA violates a hastily enacted state law that sought to exempt everyone in the state from the insurance mandate. Federal Judge Henry Hudson agreed, and struck down the individual mandate last winter.
Nationwide, five federal judges have ruled on the constitutionality of the ACA. Three have upheld it, while two have struck it down. More federal appeals courts are teed up to hear yet more cases this summer.
Matthew Staver, arguing the first case for Liberty University, opens with the claim that "for the first time in history" the ACA seeks to regulate "non-economic inactivity." Motz asks how he defines "activity," wondering whether "mental activity" or "filing a tax return" constitutes activity for Commerce Clause purposes. Staver argues that if the plaintiffs opt to remove themselves from the stream of commerce, they are not acting. Motz points out that the words "activity" and "inactivity" appear nowhere in the Constitution. Staver replies that "commerce"— which does appear in the Constitution—doesn't mean "idleness."
When Staver attempts to explain that there is no "tangible product" being regulated under the ACA in this case, Davis gets off a one-liner: "You are describing a commodity clause, not a Commerce Clause." Staver replies that the Supreme Court's Commerce Clause doctrine consistently goes right up to the "edge of the stream of commerce" but that the health reform provision goes "beyond that edge." Here is where Motz employs, in quick succession, the "enchanted broccoli forest" hypothetical, the banned trans-fats hypothetical, and the forced health-club hypothetical. Davis notes that the activity/inactivity distinction is just an "abstraction." Wynn says that while in the aggregate, people will almost invariably consume health care, "You can't make the argument that, in the aggregate, people are going to be obese or unfit.''
Turning to the "necessary and proper" clause and congressional authority, Davis adds that in terms of whether the law was "necessary," "this is clearly a slam-dunk for the government." Davis wraps up with a hypothetical in which "four twentysomethings in Virginia" are involved in a massive car crash as they road trip up to Ocean City and must be evacuated via helicopter, costing hundreds of thousands in taxpayer dollars. Gazing down at Staver, he asks, "Is it your submission that Congress has no power to address in the aggregate what we know happens every day?"
Acting Solicitor General Neal Kumar Katyal, defending the ACA on behalf of the Obama administration, quickly tries to poke a hole in the argument that the law mandates "inactivity." "It is almost a universal feature of our existence that we do use health care," Katyal says. The activity here, he argues, "is participation in the health care market." He notes that providing health care to the uninsured costs $43 billion per year, adding $1,000 to every family's annual health care premiums. Wynn tosses him another broccoli hypo, asking whether the government has the power to mandate the serving of broccoli to the unwilling. Katyal replies that "it depends how the broccoli is served up." Laughter. Katyal then dismisses the argument that a government that can force you to purchase health insurance can also force you to buy from General Motors: "You can't show up at a General Motors lot and drive away and stick the bill to your neighbor," he says. The panel appears more than persuaded. Davis talks of the need for "practical" solutions to problems of this scope.
Staver, in his rebuttal, says that he disputes the premise that everyone will eventually need to use the health care market. Doubtless the people injured in the pileup directly in front of the courthouse felt the same way mere hours ago.