Last Friday, I attended the oral argument in the Seven-Sky v. Holder case in the Court of Appeals for the DC Circuit. There has been very little press attention paid to this hearing, most likely because the press was anticipating important developments in the Eleventh Circuit case involving the 26 state Attorney’s General and the National Federation of Independence Business (in which I am involved). But the hearing was very interesting if for no other reason than the intellectual fire power of the panel: Judges Harry Edwards, Laurence Silberman (who previously wrote opinions holding that the independent counsel law and the DC gun ban were unconstitutional), and Bret Kavanaugh. The lawyers for each side had their ups and downs. The low point for the government was when Judges Kavanaugh and Silberman pressed counsel for about 10 minutes for a single example of any economic mandate that would be unconstitutional under the government’s theory of constitutionality. To their evident frustration, she refused to provide any such example. The low point for the challengers was attempting to wrestle with Judge Kavanaugh’s reading of the text of the Anti-Injunction Act, and with Judge Silberman’s capacious interpretation of Wickard v. Filburn.
Near the end of the government’s time, however, Judge Kavanaugh laid out an explicit four-point analysis that summarized several lines of questions and that might well provide the structure for a majority opinion in the case. So far as I know, this has gone unreported. (Note: I have not seen a transcript of the argument so this is reconstructed from my notes and, except where I use quotation marks, does not purport to be a verbatim account. Comments in brackets were not necessarily stated by him, but are my reactions and interpretations.)
1. First, although judges should approach all acts of Congress with a presumption of constitutionality, given that in 220 years, the Congress has never claimed the attractive power to mandate that private citizens send their money directly to private companies, judges should at least be “hesitant” before endorsing such a power. [Elsewhere in the argument Judge Kavanaugh noted that this principle was identified in Printz when Justice Scalia was evaluating the constitutionality of the power to commandeer state governments as a Necessary and Proper means of executing the Commerce power: "[I]f, as petitioners contend, earlier Congresses avoided use of this highly attractive power,” wrote Justice Scalia, “we would have reason to believe that the power was thought not to exist.” Ultimately, Justice Scalia characterized a state commandeering power as “improper.”]
2. Second, this claim of power is “uncabined.” [As evidenced by the governments adamant refusal in oral argument to identify any economic mandate that would be outside the power of Congress to enact. A fact-based evaluation that "health care is different" does not provide a judicially administrable limit. This was a major concern expressed by Judges Dubina and Hull in their jointly-authored Eleventh Circuit opinion.]
3. Third, Congress could have accomplished all or most of what it wanted to accomplish simply by exercising its tax power but it chose not to. [Although earlier in the argument Judge Kavanaugh pressed counsel for Seven-Sky on the tax power theory, this comment seemed to signal that he was not persuaded by the government’s tax power theory, which remains the darling of the law professoriate. I could be wrong about this signal, but Judge Kavanaugh did seemed to say that Congress chose not to use its tax power.]
4. Therefore, why then open a new chapter of Congressional power by extending the commerce power in so dangerous a way? Here Judge Kavanaugh made what was, for me at least, a new argument against sustaining this power: Unlike the tax power that is limited to monetary exactions (except for penalties imposed for failure to make payments), sustaining economic mandates under the commerce power would empower Congress to impose any penalty up to and including prison terms for violating its economic mandates. Judge Kavanaugh seem sincerely troubled by the dangerous nature of this new (i.e. unprecedented) expansion of federal power from what has previously existed until now. [True, the ACA contains only tepid penalties, but if the Commerce Clause rationale is successful, the sky is the limit.]
While some press accounts have focused on Judge Kavanaugh’s forceful questioning about the AIA—and it was indeed forceful—I thought the government’s counsel was effective in countering his textual analysis to the point where he volunteered that it was a “close” issue. In the end, I feel confident that the AIA issue will not prevail, especially given that both the government and the challengers agree it does not apply for good reasons, and all but 2 federal judges so far have concurred in this assessment.
Of greater concern is Judge Silberman’s interpretation of Wickard, but that issue merits a separate post.
UPDATE: When I expressed the opinion that, “In the end, I feel confident that the AIA issue will not prevail,” I was speaking of the legal challenges to the ACA as a whole, not to the outcome of the DC case in particular. Judge Kavanaugh’s concerns were serious and genuine, and I am hopeful but not “confident” that the government’s textual arguments, and a nice metaphor offered by the counsel for Seven-Sky, were enough to satisfy him.