Litigating Federal Health Care Legislation and the Interstices of Procedure

Wendy Collins Perdue *

On November 11, 2011, the University of Richmond Law Review held its annual Allen Chair Symposium, focused on the litigation challenges to the Patient Protection and Affordable Care Act (“ACA”). Recognizing that much had already been written about the constitutionality of the ACA, but that less scholarly attention had been focused on issues such as jurisdiction, standing, ripeness, and severability, the Symposium was entitled “Everything but the Merits.” The timing of this Symposium was both prescient and awkward. Three days after the Symposium was held, the Supreme Court took certiorari on a group of the ACA cases and scheduled an extraordinary three days of argument. Of course once the Court decides these cases, prognostications will be of little significance. Fortunately, the pieces that follow offer insights that go far beyond the issues of the ACA litigation, examining a range of issues about constitutional litigation.

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* Dean and Professor of Law, University of Richmond School of Law. The author would like to thank the Allen family for their support of the Allen Chair Symposium along with Professors Carl Tobias and Kevin Walsh and Symposium Editor Aminah Qureshi for their work in putting together this excellent 2011 Allen Chair Symposium.

Constitutional Forbearance

Christopher Bryant *

Eleven federal judges have ruled on the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act (“ACA”), also sometimes referred to as “Obamacare.” Five of the six judges appointed by Republican Presidents held that the mandate violated the Constitution, while four of the five judges appointed by Democratic Presidents upheld the law. In the wake of these rulings, countless commentators quickly inferred that the judges’ political preferences and affiliations were deciding factors and forecast that the seemingly inevitable Supreme Court decision of the matter would split the High Court 5-4, with Justice Kennedy casting the deciding vote. The four other Justices appointed by Republicans are expected to vote to invalidate the law, and the four Justices appointed by Democrats are expected to vote to sustain it.

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* Professor, University of Cincinnati College of Law. J.D., 1994, University of Chicago; B.A., 1991, Hanover College.

Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and the Affordable Care Act

Edward A. Hartnett *

For a time, the law governing facial, as opposed to as-applied, constitutional challenges was, it seemed, simple to state. There was a general rule and a First Amendment exception. The general rule was that facial challenges were rare, disfavored, and could succeed only if the challenger convinced the court that there were no circumstances under which the challenged statute could be constitutionally applied. As the Supreme Court put it in United States v. Salerno, it had “not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment,” and that in all other contexts, a facial challenge could succeed only by showing that “no set of circumstances exists under which the Act would be valid.” The exception, the First Amendment overbreadth doctrine, enabled a challenger to show that, although his own conduct was not constitutionally protected, the statute was sufficiently broad that it also applied to others whose conduct was constitutionally protected, and therefore could not constitutionally be applied to anyone. This overbreadth doctrine was designed to avoid the chilling of free speech.

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*    Richard J. Hughes Professor for Constitutional and Public Law and Service, Seton Hall University School of Law. J.D., 1985, New York University School of Law; A.B., 1982, Harvard College. Thanks to John Jacobi and Frank Pasquale for helpful comments.

Beyond the Doctrine: Five Questions that Will Determine the ACA’s Constitutional Fate

Bradley W. Joondeph *

The litigation challenging the constitutionality of the Patient Protection and Affordable Care Act (“ACA” or “Act”) raises a number of interesting and important questions of constitutional law. But in cases of this magnitude and political salience, the Supreme Court’s deliberations typically are shaped by forces that transcend the relevant doctrine. The Court’s response to the ACA is unlikely to be an exception. Specifically, the Justices’ reactions to five questions—all of which go beyond the doctrinal merits—will likely determine the Act’s fate: (1) whether this is the sort of case in which judicial review is necessary, or instead one that the elected branches are capable of solving on their own; (2) whether the states are “separately incompetent” to reform the nation’s health care financing system, such that invalidating the Act will leave a policy void (and whether the existence of such a void should matter); (3) whether Congress’s power to adopt a more radical, single-payer-type system for all Americans should inform whether Congress has the authority to adopt the more incremental ACA; (4) whether the Court can invalidate the ACA, especially with an ideologically predictable 5-4 split, without appearing overly partisan to the American public; and (5) how Chief Justice Roberts will perceive the impact of this case on his legacy—as an opportunity to reaffirm the singular importance of judicial restraint, or as an instance where the Court’s intervention is necessary to preserve foundational principles. Each of these considerations extends beyond the precise constitutional questions presented. But in a case such as this, it is the Justices’ reactions to these broader questions that tend to drive their doctrinal analysis, rather than the other way around.

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* Professor, Santa Clara University School of Law. J.D., 1994, Stanford University; B.A., 1990, Stanford University. I am grateful to the University of Richmond School of Law, and particularly Professor Kevin Walsh, for the opportunity to participate in the 2011 Allen Chair Health Care Symposium, and to David Ball, Deep Gulasekaram, David Hasen, Timothy Jost, Michelle Oberman, Ilya Shapiro, David Sloss, and Ilya Somin for their very helpful comments on earlier drafts. I owe thanks to Brandon Douglass and Jennifer McAllister for their terrific research assistance.

 

The Rhetoric Hits the Road: State Challenges to Affordable Care Act Implementation

Elizabeth Weeks Leonard *

What is it about health reform—about the particular exercise of federal power to compel the purchase of health insurance by individuals—that has sparked such concerted objection from states? Congress has reached deeply into areas of traditional state authority on other occasions in recent memory, without similarly provoking a majority of states to file federal lawsuits or engage in a multi-front attack to dismantle a validly enacted federal statute. How has a federal law, which most clearly infringes on individual rather than states’ rights, become the rallying cry for a nationwide Tenth Amendment reinvigoration movement? In keeping with the 2011 Allen Chair Symposium’s “Everything But the Merits” theme, this essay considers states’ lawsuits not merely beyond the merits but even beyond the litigation itself and places the litigation strategy in the larger context of other forms of state resistance to implementation of the Patient Protection and Affordable Care Act (“ACA” or “Act”).

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*     Associate Professor, University of Georgia School of Law. J.D., 1999, University of Georgia; B.A., 1993, Columbia University. I am grateful to Carl Tobias and Kevin Walsh for inviting me to the 2011 Allen Chair Symposium and all of the Symposium participants for a stimulating discussion.

The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to § 5000A of the Tax Code

Kevin C. Walsh *

Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act (“ACA” or “Act”)—a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.

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* Assistant Professor, University of Richmond School of Law. J.D., 2002, Harvard Law School; M.A., 1999, University of Notre Dame; A.B., 1998, Dartmouth College.

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