More On Today’s Court Ruling On ACA

November 8, 2011 9:06 a.m.

Law professor by day, TPM reader by night:

I think what’s important about Seven-Sky is not so much that there are now two appellate opinions by conservative judges that uphold the Affordable Care Act as that the opinion is so well crafted.

Judge Silberman incisively shows that you’d have to rip up significant aspects of post-New-Deal Commerce Clause jurisprudence to conclude that the ACA is unconstitutional. He very carefully goes through the prior cases to demonstrate the point. I think it’s also significant that Judge Silberman is, whether you agree or disagree where he comes out much of the time, highly regarded as one of the smartest judges out there. The same can be said for Judge Sutton.

The other interesting aspect is that Judge Kavanaugh makes the best case I’ve seen that the courts don’t have jurisdiction to decide this issue yet, which I think increases the possibility of a split majority in the Supreme Court (i.e., five votes to reject the challenge, some on the merits and some on jurisdiction).

Just my 2c.

I thought I’d made clear here that I was speaking loosely, but TPM Reader NC takes me to task anyway:

You write: “[W]e may have reached the point where the weight of jurisprudence now favors the Supreme Court upholding the law.”

This statement is complete nonsense. A circuit court’s ruling has very little influence on what the Supreme Court does. The jurisprudence they’re going to look to is the stare decisis they always had. There was ample support to uphold the law prior to any of the circuits’ decisions. Circuit courts are merely persuasive authority. And in the end, the Court can pretty much do whatever the hell it wants.

Another law prof reader:

As you write up your writeups about today’s DC Circuit opinion, one important thing to keep in mind (which I appreciate that you mention!) is that the dissenting judge, Brett Kavanaugh, is dissenting entirely on jurisdictional grounds. His view is similar to that of the 4th Circuit. He is not saying the individual mandate is unconstitutional.

The particular ground on which he dissents helps bolster an important argument for the constitutionality of the ACA that sometimes gets forgotten in the titanic fight about the Commerce Clause: the taxing power. Even if the individual mandate were not a valid exercise of Congress’ commerce power, or Congress’ powers under the Necessary and Proper Clause, the individual mandate is also, basically, a tax.

Kavanaugh notes that Congress avoided the “dreaded T-word,” but basically, the thing looks like a tax and acts like a tax; it is enforced through the tax code by the IRS, it raises real money, et cetera. That’s why Kavanaugh would hold that there is no jurisdiction to decide these challenges now — the Anti-Injunction Act prevents pre-enforcement challenges to tax laws. (You’ve got to wait until you actually are made to pay a tax, then you can challenge it.)

To be clear, Kavanaugh does not come out and hold that the individual mandate is a tax. He explicitly reserves that question. But the logic of his analysis of why there’s no jurisdiction suggests that there’s a pretty strong argument that the mandate is a tax, and therefore a valid exercise of Congress’ taxing power.

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