In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights its protects. Today’s topic: the Affordable Care Act.
The constitutional claim:
“We welcome the Sixth Circuit’s ruling today dismissing this challenge to the Affordable Care Act and its finding that Congress acted within its authority in passing this landmark health care reform law.” (emphasis added)
— Justice Department statement, June 29, 2011
The constitutional response:
A finding by the Sixth U.S. Circuit Court of Appeals in Cincinnati that Congress did have the authority to pass the law would have upheld its constitutionality. But the court did not do that; it refused to strike it down. There is a constitutional difference, and it makes an actual difference.
Since the famous decision in Marbury v. Madison in 1803, federal courts have had the authority to strike down federal laws by concluding that they conflicted with the Constitution. (State courts cannot do that with a federal law.) But there is a more modern decision that set out the rule that was at work in the health care decision on Wednesday. It is the “Salerno doctrine,” from the Supreme Court’s 1987 decision in a pre-trial jailing case, U.S. v. Salerno.
First, a bit of background on constitutional challenges to a federal law. There are really two basic kinds: A “facial” challenge, usually pursued before the law goes into effect, claims that the law is unconstitutional just as written. An “as-applied” challenge claims that after the law starts operating, it is unconstitutional as actually applied to a particular individual or group. The Sixth Circuit Court rejected the first kind of challenge, but left the second open.
The “Salerno doctrine” was spelled out this way by the Supreme Court: “A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid.”
It is important to emphasize that the Sixth Circuit case did not involve the entire new health care law. It has hundreds of sections, and the only one at issue was the requirement that virtually every American must obtain health insurance by the year 2014. Granted, that is the most crucial part of the entire law, because it is the mechanism that is supposed to make the entire law work in expanding health care to all Americans; such a grand ambition could not be afforded, the government contends, without assurances that everyone will pay into the insurance system.
The Sixth Circuit Court was the first court at the appeals level to rule on a challenge to the insurance requirement. A conservative legal advocacy group in Ann Arbor, Mich., the Thomas More Law Center, and three individuals contended in their lawsuit that that requirement was beyond Congress’s legislative power, when Congress is seeking to regulate “interstate commerce.”
This was a “facial” challenge, since that mandate does not take effect until 2014. In order to get the Sixth Circuit Court to strike it down as written, the challengers would have had to satisfy the Salerno doctrine – that is, they had to prove that there was no set of circumstances that would arise, at any time, in which the insurance requirement would be valid. This, the decision concluded, they could not do.
A fractured decision
There is a special kind of judicial arithmetic at work when a court with multiple judges reaches a “fractured” decision – that is, not all of the judges, not even a majority, can agree on the decision. That happened in the Sixth Circuit Court on Wednesday.
One of the three judges on the panel, Circuit Judge Boyce F. Martin, Jr., would have ruled that Congress did have the authority to enact the insurance mandate. That was what a lower court, a U.S. District Court in Michigan, had concluded, and what the Justice Department thought the Circuit Court, too, had done. But two of Judge Martin’s colleagues would not go along with that outcome.
A second judge, Circuit Judge Jeffrey S. Sutton, concluded that the challengers had not proved that the insurance requirement could never be enforced constitutionally, in any set of circumstances. He listed several where, he said, it would be valid. So, he found, the “facial” challenge failed.
And the third judge, District Court Judge James L. Graham (sitting temporarily on the Circuit Court) would have ruled that the challengers had succeeded. In other words, he would have struck down the insurance requirement because, he said, it was beyond Congress’s authority.
How, then, does one count up to two – the number needed for a controlling majority on a three-judge court – in order to know what was actually decided? The Supreme Court has supplied an answer for that, too. In the 1977 case of Marks v. U.S. (an obscenity case), the Court prescribed a formula for counting when the Supreme Court’s nine Justices split in a case, and there is no majority. The formula works, also, on lower federal courts with multiple judges.
Here is the formula: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.”
In the health care decision, Judge Sutton’s decision emerged as the one that controlled the outcome. That was because the “facial” challenge was rejected for two different reasons, and the Sutton approach was the more modest: Judge Martin used a broad rationale that would have upheld the law as written, but Judge Sutton relied upon a very limited rationale — that the challengers had not proved their case. Judge Graham’s vote to uphold the challenge did not count, since he was outvoted.
Does that make any real-world difference? It does. If the Supreme Court, when and if the challenge gets to the Justices, would agree with Judge Sutton’s approach, the insurance mandate would go into effect in 2014, and it could then be challenged, only case by case, by individuals who claimed that it was unconstitutional as applied to them. Even so, such challenges, though individually centered, actually could produce decisions that could cripple the mandate in most situations.
If, however, the Court would ultimately agree with Judge Martin, the mandate would have been upheld, and the task of individual challengers to avoid the mandate would have been much more difficult. Should the Court opt to agree with Judge Graham, the mandate could not be enforced against anyone.
Still, the Sixth Circuit Court is only one of seven federal appeals courts considering the constitutionality of the insurance mandate. So its decision Wednesday is but one step along the perhaps inevitable route to the Supreme Court.