Health care law oral arguments: Health care isn't broccoli. Again.

Health care law oral arguments: Health care isn't broccoli. Again.

Health care law oral arguments: Health care isn't broccoli. Again.

The law, lawyers, and the court.
May 10 2011 6:36 PM

It's Good for You

A federal appeals court hears arguments about Obama's health care law—and broccoli.

 Virginia Attorney General Ken Cuccinelli.  Click to expand image.
Virginia Attorney General Ken Cuccinelli

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."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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.


The second case mostly turns on a narrower question: whether Virginia had "standing" to file its lawsuit, given that the state sued in federal court on behalf of all of its citizens, whereas the Liberty case involved individual plaintiffs. The lower court had little trouble getting past the standing issue in striking down the mandate. The panel today can't seem to get over it. Katyal opens his second argument by pointing out that states may not simply challenge all federal action on behalf of their citizens; if they could, states could file federal suits opposing the war in Afghanistan or declining to have state residents pay their Social Security taxes. Wynn points out that such lawsuits are a useful way to get to the merits of such cases. Katyal replies that a better way of getting to the merits is with plaintiffs who have standing to bring suit—like the Liberty University plaintiffs.

Katyal explains that the text of the statute says that no Virginian can be forced to purchase health insurance. Davis, laughing aloud, asks how Virginia plans to enforce that.

Motz asks Katyal whether his side loses if the panel determines it's inactivity being regulated. Katyal says calling "activity" vs. "inactivity" isn't the central question. "Those are just words they use."

"Words they use a lot of times," chuckles Motz. Katyal says again that the uninsured cost $43 billion per year, whereas the whole budget for the federal judiciary is just $7 billion. Motz, on a roll, grins, "You get a lot of bang for the buck with that judiciary."

Virginia Solicitor General E. Duncan Getchell Jr. argues on behalf of Attorney General Cuccinelli, who mostly sits at the counsel table shaking his head in bafflement that nobody can talk about anything but standing. "So a state could challenge any federal statute in court as long as the state passed a law?" asks Motz. Then Wynn presses Getchell on where the state has found standing to bring suit on behalf of all its citizens. Getchell replies that "maintaining federalism is in the interest of its citizens." Getting increasingly riled by a panel that is quite literally giggling at the mental image of Virginia enforcing its "nobody has to buy health insurance" law, Getchell eventually huffs that "co-sovereignty is not to be deprecated," and that "I don't know why it's a low trick to pass a law." (It's not clear to me that a panel comprised of two African-Americans and a woman, sitting in Richmond no less, will be all that receptive to arguments about the wonders of nullification. But Getchell seems undeterred.)


Wynn admits he's bothered at the prospect that a state can just create standing to file a federal lawsuit by enacting a statute, and Katyal revisits this argument on rebuttal. He closes by reminding the panel that "activity and inactivity are not a touchstone that map onto the Commerce Clause." What matters in the end is whether there is an effect on interstate commerce.

Don't let anyone tell you that this appeal was over as soon as it began merely because of who appointed this panel. This case was always going to be a tough one to win, and the reason has nothing to do with which president appointed the judges. The case is tough on the merits, as they say. The argument that the individual mandate is flatly unconstitutional because 1) it's unprecedented; and 2) it's a fast train to forced broccoli is fanciful and interesting. But it has limited doctrinal merit. The panel today was respectful of both those contentions, and more respectful of the second than was absolutely warranted. But as each judge insisted at various times today, they are ultimately constrained by the words of the Constitution itself, the case law, and the Commerce Clause doctrine—and for those reasons alone, this law will be upheld.

Correction, May 10, 2011: This article originally said Davis and Wynn were nominated in 1990 and 1999. (Return to the corrected sentence.)

Correction, May 11, 2011: This article originally misspelled Judge Noman Moon's name as "Normal." (Return to the corrected sentence.)