Some of the Washington Redskins’ offensive woes appear to have rubbed off on the latest local team challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA) in court. Earlier today, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit posted a shutout in dismissing the latest significant case claiming that the law’s individual mandate is unconstitutional (the current won-lost record at the federal appellate level is either 1 and 2 or 1 and 4, depending on whether you score dismissals for lack of standing as a tie).
Initial hopes that an apparently favorable panel of two judicial “conservatives”—Judge Lawrence Silberman and Judge Brett Kavanaugh—would agree with an earlier anti-mandate ruling in the 11th circuit were dashed when Silberman and Judge Harry Edwards upheld the mandate as a constitutional exercise of the powers of Congress to regulate interstate commerce. Kavanaugh’s “dissenting” opinion did not reach the constitutional merits because he found that federal courts lacked jurisdiction over the issue at this time, concluding that they cannot enjoin the collection of mandate penalties by the Internal Revenue Service in advance of when they first are collected (in 2014).
In the battle between quick-kick punts (Silberman—hardly devoting ten pages to the main constitutional law argument in the lead opinion) and overheated waffles (Kavanaugh—firing up the iron at the International House of Judicial Pancakes), no one stepped up to the need to overturn 70 years of chronically bad Supreme Court precedent, which centers on the New Deal era case of Wickard v. Filburn (1942).
Today’s forecast from this legal meteorologist predicts that the eventual Supreme Court decision next June will come down to how Justice Anthony Kennedy (not Chief Justice John Roberts) lines up. If the anti-mandate legal team’s targeted appeal to Kennedy’s past embrace of structural federalism as a bulwark of constitutional liberty doesn’t work, the chief justice is most likely to resist staying in the minority (four justices appointed by Democratic presidents are “in the bank” to uphold the PPACA with few questions asked) and instead join Kennedy in a 6-3 vote to keep the PPACA alive (before it dies of other, politically self-inflicted wounds?).
But if Kennedy stays in line with some of his past opinions (and doesn’t read the NY Times the day before voting in conference), Roberts would be “inspired” to join a 5-4 decision to strike down just the individual mandate, and perhaps a few related health insurance regulatory provisions—in order to shape the scope of such a ruling more narrowly. And, if you don’t like today’s prediction, just wait. There undoubtedly will be other ones forthcoming as the constitutional arguments and surrounding political atmospherics swing back and forth in the months ahead.
What those of us who fondly remember a previous vintage of the U.S. Constitution (the one with enumerated powers that limited the scope and scale of the federal government) actually need are justices willing to be less deferential to bad court precedents and more willing to take some public heat. That’s how the Warren Court created such a long line of periodically outrageous, new constitutional “law.” Reversing it, and rolling back similar extensions of the federal government’s powers, cannot be expected to look very pretty. But getting legally cute and finding new exceptions to past contortions (activity vs. inactivity, economic vs. non-economic, penalty vs. tax) is just as hard (although more tempting; hence the many indecipherable 5-4 decisions authored by former Justice O’Connor and other judicial weathervanes in the past).
Elections have consequences, too, and there’s a particularly ugly one coming up next year. Instead of hitting the pause button while wishing that five Supreme Court justices will deliver fleeting relief from the pain of ObamaCare, it looks like it’s time to diversify the investment portfolio and think about a return to regular politics by more transparent means. Repeal, replace, revise, rewind. Any of the above might be better than none of the above.