Health Care and Judicial Activism
Obviously, the Florida court ruling striking down the health care law as unconstitutional leads today’s headlines. A quick digest of stories from the major press outlets includes those from the AP, the Washington Post, the New York Times, the LA Times, and USA Today. The Wall Street Journal, in addition to its summary, also has an analysis of the implications of the suit on the commerce clause (and vice versa), as well as an editorial praising the decision. Politico has a summary, a preview of a potential Supreme Court review of the individual mandate, and a primer on the political implications of the ruling. CQ speculates on how the ruling might affect implementation, and The Hill discusses Democrats’ options on the individual mandate.
It’s also worth taking some time to examine the ruling itself, given that the White House and others have called it a work of “judicial activism,” specifically because it strikes down the ENTIRE bill, as opposed to just the individual mandate. While the usual practice of courts is to strike down only the unconstitutional provisions, the Administration has argued in its defense of the law that the individual mandate is “essential” to the other health insurance reforms. (An October Wall Street Journal piece at the time of the Virginia ruling noted the contradictions inherent in the government’s legal defense – whereby the Administration argued that other portions of the law, like the student loan provisions included in reconciliation, should not be struck down, even at the same time asserting that the mandate is part of a larger health regulatory scheme, and the law cannot stand without the mandate left intact.) Determining what portions should be stricken requires a test of whether the remaining portions “can function independently” in a manner “consistent with the intent of Congress,” and a review of the statute to determine whether the remaining portions would have been preferable to no law at all. (See the discussion at pages 65-66 of the ruling.)
Congress explicitly rejected a severability clause for the enacted version of the law – the House introduced bill (H.R. 3200) and House-passed measure (H.R. 3962) both included severability clauses, but the Senate version that the President sign did not. The ruling cites prior Supreme Court precedent to conclude that Congress’ decision specifically to omit a severability clause was important, given the questions surrounding constitutionality at the time of the bill’s consideration. In addition, a textual analysis of both the briefs in the case and other public comments indicates a strong emphasis by advocates of the legislation on the “affordability” provisions of “health insurance reform,” indicating the law’s own advocates consider these provisions the lynchpin of the statute. (Put another way, how many times have you seen Members making floor speeches about the bone density provisions in Section 3111 of the statute? While this provision and others may be able to stand without a mandate, they don’t represent the major thrust of the measure, by any stretch.)
When it comes to whether the remaining portions would have been preferable to no law at all, there are some instructive examples to consider:
- CLASS Act: This new, unsustainable entitlement specifically failed to obtain a majority vote on the floor of the Senate; 11 Democrats rejected it, including Budget Committee Chairman Kent Conrad, who famously called it “a Ponzi scheme of the first order, the kind of thing that Bernie Madoff would have been proud of.” This program obviously would not have stood on its own without being linked to the health insurance provisions in the broader bill.
- Indian Health Service (IHS) Reauthorization: This 300-page bill was NOT subjected to a separate vote in either the House or the Senate – then-Speaker Pelosi added the measure to the House-passed measure (H.R. 3962) after the standing committees had completed their deliberations, and Majority Leader Reid included the measure as part of a larger manager’s package on the Senate floor. It’s worth pointing out that Speaker Pelosi had deliberately refused to bring the measure to the House floor for several years, because pro-life Democrats likely had the votes to attach restrictions on abortion funding to the measure. The last-minute inclusion of the IHS provisions was likely to allow the bill to “piggy-back” on the insurance reform measure – meaning it’s unlikely a stand-alone bill along the lines of the provisions in the statute would have been enacted on its own.
- Backroom Deals: Does anyone believe that Congress would have taken time to enact the “Louisiana Purchase,” the “U-CONN” hospital earmark, and all the other special deals in the legislation as stand-alone bills?
- 1099: As the ruling pointed out, the 1099 paperwork mandate is one of the stand-alone provisions that clearly has no link to the health insurance provisions (or anything health care related, for that matter). Yet Democrats and President Obama have called for its repeal. Should a judge uphold the 1099 provision on the grounds that it’s not related to the insurance regulations and individual mandate, or strike the provision on the grounds that even the bill’s writers have now disclaimed authorship of it?
While only the 1099 provision is specifically referenced in the ruling, it perfectly illustrates why the ruling struck down the entire law – because it requires a judge to attempt to divine Congressional intent. As the ruling notes at pages 72-73:
Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it….Courts should not even attempt to do that. It would be impossible to ascertain on a section-by-section basis if a particular statutory provision could stand (and was intended by Congress to stand) independently of the individual mandate. The interoperative effects of a partial deletion of legislative provisions are often unforseen [sic] and unpredictable. For me to try and “second guess” what Congress would want to keep is almost impossible.
For these reasons, yesterday’s ruling represents NOT an example of judicial activism, but of judicial modesty – a judge admitting he cannot (and should not) unilaterally attempt to ascertain Congressional intent.
Bloggers like Ezra Klein (the noted constitutional scholar) have argued that striking down the whole law is the work of an “activist in the extreme,” relying on a passage on page 74 of the ruling, where Judge Vinson discusses the “‘normal rule’ rule that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute,” and notes that “this [ruling] is not a situation that is likely to be repeated.” Klein’s comments miss a key point – the Administration has itself conceded that the bill violates the “normal rule,” by admitting the insurance restrictions CANNOT stand without an (unconstitutional) individual mandate. (For the record, Klein himself has stated that the insurance regulations would be ineffective without a mandate, effectively agreeing with Judge Vinson that the mandate affects other significant portions of the law.) Therefore, by the Administration’s own argument, more of the law than just the offending provision (i.e., the mandate) must be struck down – and the Judge engaged in what this morning’s WSJ editorial rightly termed “an act of judicial modesty” by not attempting to divine what portions of the law can stand and what portions must fall.
As to the ruling’s comment that “this is not a situation that is likely to be repeated,” that speaks to the gargantuan nature of the legislation itself. (Do those citing this passage believe Congress should start passing 2,700-page comprehensive bills every week?) Moreover, as the ruling indicates, “the question of severability ultimately turns on the nature of the statute at issue.” In other words, a textual analysis of the statute at issue is ALWAYS required, meaning that by definition the situation facing this particular court will not be repeated.
Yesterday’s ruling striking down the entire law was an example where a judge – facing agreement from both parties that the individual mandate was inextricably linked to other significant portions of the statute – decided NOT to impose his judgment for that of Congress in deciding what specific provisions should and should not stand. Where Democrats call such a step judicial activism, many Republicans may view such a ruling as an example of judicial modesty.