Antonin Scalia, Clarence Thomas and Samuel Alito (AP)

The Federalist Society to Fox News to the Supreme Court: The real story behind the conservative war on Obamacare

If you want to understand the legal battle against the ACA, follow the influential conservative Federalist Society


Amanda Hollis-Brusky
March 6, 2015 2:17AM (UTC)
Excerpted from "Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution"

The conservative legal mobilization efforts against the ACA (derogatorily referred to on the legal/political right as “Obamacare”) began long before the statute was signed into law. In this effort, prominent Federalist Society members led the charge. In July 2009, for example, the Federalist Society released a White Paper (co-authored by Peter Urbanowicz and Dennis G. Smith) entitled “Constitutional Implications of an ‘Individual Mandate’ in Health Care Reform,” in which the authors outline various constitutional objections to the proposed healthcare legislation.On September 18, 2009, the Federalist Society hosted an online debate as part of its series “Originally Speaking,” on the constitutionality of Health Care Reform. It then hosted a follow-up debate in November specifically on the issue of the constitutionality of the Individual Mandate, in which David B. Rivkin raised a host of constitutional objections to healthcare reform, referring to the Individual Mandate as the “Commerce Clause on steroids.” This conservative legal mobilization against “Obamacare” spilled over into the mainstream media. In August 2009, Federalist Society members David Rivkin and Lee Casey wrote an op-ed for the Wall Street Journal entitled “Illegal Health Reform.” Federalist Society member Randy Barnett—who would become the mastermind behind the legal strategy attacking the individual mandate—posted a follow-up article on Politico less than a month later, and argued that the commerce power did not and could not be understood to allow Congress to mandate the purchase of health insurance. From September to December 2009, David Rivkin was busy making the rounds on Fox News and FoxNews.com, calling the proposed health care legislation “an unprecedented imposition on individual liberty.”

Despite these objections, the ACA became the law of the land in March 2010. As expected, shortly thereafter 26 states, several individuals, and the National Federation for Independent Business (NFIB) filed suits in federal District Courts, raising a host of constitutional objections to the legislation. The challenges that the Supreme Court ultimately agreed to hear in NFIB et al. v. Sebelius (2012) came out of the Eleventh Circuit Court of Appeals and, before that, the United States District Court for the Northern District of Florida. The Supreme Court case involved two main constitutional issues: (1) a challenge to the Act’s Individual Mandate as exceeding Congress’s power to enact under the Commerce Clause; and (2) a Tenth Amendment/Anti-Commandeering challenge to the Act’s Medicaid expansion provision. While the District Court and the Eleventh Circuit had both ruled that the Individual Mandate exceeded Congress’s power under the Commerce Clause, the former had ruled that it was non-severable from the rest of the legislation, while the latter ruled that most of the Act could be salvaged even after striking down the mandate component.

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As for the challenge to the Medicaid expansion, the Eleventh Circuit had ruled that the provision to expand Medicaid did not constitute “coercion” as the Supreme Court had defined it in New York and Printz and therefore did not violate the Tenth Amendment to the Constitution. Parties on both sides of the case appealed the Eleventh Circuit’s decision to the Supreme Court: the States Attorneys General (Florida et al.) and the NFIB appealed the Eleventh Circuit’s holding on the Medicaid Expansion and its decision on the severability of the Individual Mandate, respectively, and the United States Government (Department of Health and Human Services and Secretary Kathleen Sebelius) appealed the Eleventh Circuit’s holding on the Individual Mandate as exceeding Congress’s power under the Commerce Clause. The Supreme Court announced that it would hear the challenges in what would become known as NFIB et al. v. Sebelius in November 2011 and, in a historic move signaling the importance of this case, it designated six hours of oral argument over three days (as opposed to the normal one hour) at the end of March 2012 to thoroughly consider all constitutional questions and concerns from the parties. After months of media speculation, fanfare, and election-year politicking, the Supreme Court finally announced its decision on June 28, 2012. In a fractured opinion written by Chief Justice John Roberts, the Supreme Court agreed with the Eleventh Circuit and District Court (and many members of the Federalist Society network) that the Individual Mandate exceeded Congress’s power under the Commerce Clause. However, in a surprise move, the Chief Justice wrote that the Individual Mandate could still be upheld under Congress’s taxing power and was therefore constitutional. On the other hand, the Supreme Court reversed the Eleventh Circuit’s holding on the Medicaid expansion provision, arguing that it did in fact constitute “coercion” and therefore did violate the Tenth Amendment Anti-Commandeering Doctrine established in New York and Printz.

Federalist Society members had been invested in the litigation efforts against the ACA well before the Act was signed into law—before there was even anything concrete to litigate against. Given the enthusiasm within the network for the constitutional questions concerned (federalism/state sovereignty) and the scope and importance of the legislation itself, it should not come as a surprise that Federalist Society network participation in the litigation in NFIB et al. v. Sebelius (2012) was very high. Twenty-four Federalist Society network members participated as amici curiae in this case. These 24 members were listed on 15 of the total 56 amicus curiae briefs submitted on behalf of the states and the NFIB. This list includes several names that I have identified as thought leaders within the Federalist Society network on the topics of federalism and state sovereignty—Edwin Meese III, Richard Epstein, and Charles J. Cooper. Additionally, eight Federalist Society members were listed as counsel on litigant’s briefs, including both counsels of record.

For the states (Florida et al.), Federalist Society member Paul Clement was listed as counsel of record and argued the case before the Supreme Court. Also listed on the brief from the states are Federalist Society members Robert M. McKenna, David B. Rivkin, Lee A. Casey, and Michael B. Wallace. Counsel of record for the National Federation of Independent Business, Federalist Society member Michael A. Carvin also argued his client’s case before the Supreme Court at oral argument and was aided on brief by two other Federalist Society members—Randy Barnett and Gregory G. Katsas. Finally, though neither the District Court opinion nor the Eleventh Circuit opinion was written by a Federalist Society member, the network was well represented at the Supreme Court level with Chief Justice John Roberts and Justices Scalia, Thomas, and Alito.

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Although the Individual Mandate portion of the ACA was ultimately left intact by the Supreme Court, the majority opinion in NFIB et al. v. Sebelius still represented a partial victory for the Federalist Society network. Relying on the Commerce Clause cases examined in the previous chapter—New York, Lopez, and Morrison—the majority opinion ruled that the Individual Mandate exceeded Congress’s commerce power. In doing so, it reaffirmed the more limited understanding of the Commerce Clause that many network members had fought for decades to get the Supreme Court to adopt. The successful litigation strategy against the Individual Mandate, often credited to Federalist Society member Randy Barnett, was to draw a clear line between what the Supreme Court had previously said Congress could regulate (commercial “activity”) versus what they argued the ACA was attempting to regulate (“inactivity”). The counsel brief for the NFIB (on which Randy Barnett was a signatory) explains that “[u] nder controlling precedent, there are ‘three broad categories of activity that Congress may regulate under [that] commerce power’. . . Yet none of those ‘categories of activity’ covers the inactivity regulated by the mandate—i.e., the non-purchase of health insurance.”

The brief for the states (Florida et al.), on which Federalist Society member Paul Clement was counsel of record and four other network members were signatories, also advanced the activity/inactivity argument. In addition, 23 of the 54 amicus curiae briefs submitted on behalf of NFIB and/or the states mentioned the activity/inactivity distinction a total of 90 times in their arguments. Seven of these briefs had Federalist Society network signatories.

This novel activity/inactivity distinction was adopted wholesale by Chief Justice John Roberts in his majority opinion in NFIB et al. v Sebelius. It also featured prominently in the joint dissent of Scalia, Thomas, Alito, and Kennedy. As Roberts writes, “[a] s expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.’ ” He continues that, unlike previous cases, the individual mandate “does not regulate existing commercial activity:”

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It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

Roberts continues that if the Supreme Court were to accept the Individual Mandate as a valid exercise of the commerce power, then Congress could presumably also use the commerce power to mandate individuals to purchase “food, clothing, transportation, shelter, or energy” and to regulate individuals “from cradle to grave.” In fact, Federalist Society member and counsel of record for the NFIB made this exact point during oral argument. “If being born is entering the market,” Carvin argued, “then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human being from cradle to grave.”

This concern with the slippery slope of governmental regulation, of the limitless power of Congress to compel individuals to engage in activity and to regulate individuals “precisely because they are doing nothing” was also an oft-cited concern by Federalist Society amici curiae in their briefs to the Supreme Court. For example, in his amicus brief, Federalist Society member Richard Epstein writes, “This Court must give a candid answer to this question: ‘If the government can force us to buy health insurance, what can’t it force us to do? To that question it is not an acceptable answer to say that in the name of protecting and advancing health, the commerce power allows the federal government to prescribe what individuals may eat, how they must exercise, and what medicines they may take.” Epstein’s brief extended this logic, arguing that “[w] ithout judicially enforceable limits on the power of Congress, only the self-restraint of transient congressional majorities can limit the reach of the federal government. History teaches, and Madison knew all too well, that in any constitutional republic, the transition to unrestrained majority rule is often an irrevocable step on the road to tyranny.” The language in Roberts’s majority opinion also echoed the concerns of Federalist Society network members expressed in op-eds, on Fox News, and in Federalist Society–sponsored debates up to a year prior to this decision. For example, in an online debate hosted by the Federalist Society in November 2009, David B. Rivkin had argued that the Individual Mandate “does not regulate any transactions at all. It regulates human beings, simply because they exist, and orders them to engage in certain types of economic transactions.” Similarly, network member Ilya Somin had written earlier in 2010 in a Federalist Society–sponsored publication that while “some argue that those who choose not to purchase health insurance are not simply ‘doing nothing,’. . . the individual mandate is not contingent on engaging in any. . . activities.”

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What is so noteworthy about this wholesale adoption of the activity/inactivity distinction is the fact that the Eleventh Circuit opinion, which also found that the Individual Mandate exceeded Congress’s commerce power, did not accept this distinction as dispositive. In fact, in their jointly authored majority opinion, Judges Joel Frederick Dubina (a George H. W. Bush nominee) and Frank Hull (a Clinton nominee) wrote, “Whereas the parties and many commentators have focused on this distinction. . . we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case.” Unlike the Supreme Court majority, the Eleventh Circuit was hesitant to adopt the kind of formalistic distinction that had plagued the Supreme Court’s pre–New Deal era Commerce Clause jurisprudence—the kind of jurisprudence that Federalist Society members such as Richard A. Epstein, if we recall last chapter’s discussion on the Commerce Clause, are quite eager to return to in regular practice. What is even more noteworthy about the adoption of the activity/inactivity distinction is that, according to several experts and legal commentators—Justice Ruth Bader Ginsburg among them—because Roberts’s opinion ultimately upheld the Individual Mandate as constitutional under Congress’s taxing power, it was not legally necessary to address the Commerce Clause question at all. So Roberts’s treatise on the Commerce Clause and his adoption of the activity/inactivity distinction can arguably be construed as a way of placating those on the legal right (his fellow Federalist Society members chief among them) who would understandably be upset with him for joining the liberal bloc to uphold the Individual Mandate. If this is so, then this speaks to the power of the Federalist Society network as a “judicial audience” (Baum 2006), that is, as a check and a safeguard against conservative judges and Justices straying too far from what their intellectual and social peer group expect of them.

A second and more important way in which the opinion in NFIB et al. v. Sebelius can be understood as a victory for the Federalist Society network and proponents of limited government is in its ruling on the Medicaid expansion provision. To recall, this provision required states to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. While the ACA increases federal funding to cover the states’ costs in expanding Medicaid coverage, if a state refuses to comply with the expanded coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds. The states (Florida et al.), led by counsel of record and Federalist Society member Paul Clement, argued that this provision violated the principles of state sovereignty embodied in the Constitution, as well as the coercion doctrine: “The coercion doctrine is as essential. . . to the preservation of the integrity, dignity, and residual sovereignty of the states.” To make its case, the states’ brief relies heavily on New York and Printz, citing these cases a combined 13 times in its Argument section. Seven other parties submitted amicus curiae briefs addressing the Medicaid question; three of these briefs contained Federalist Society signatories (Richard A. Epstein, Steven G. Bradbury, and James F. Blumstein). The majority opinion, penned by Chief Justice Roberts, dutifully reviews Supreme Court precedent on “coercion” and “commandeer[ing],” focusing especially on the opinions in New York and Printz to support the proposition that it is the duty of the Supreme Court “to strike down federal legislation that commandeers a state’s legislative or administrative apparatus for federal purposes.” After reviewing the details of the Medicaid expansion provision, the majority concludes that it crosses the line from inducement into unconstitutional coercion. In a final statement that recalls language often recited within Federalist Society network, Roberts emphasizes that, in a system of limited government and dual sovereignty, “Congress has no authority to order the states to regulate according to its instructions.”

Though Scalia, Alito, Thomas, and Kennedy join in the ruling that the Medicaid expansion provision is unconstitutionally coercive, they write separately in this case. In addition to agreeing with the logic of the majority opinion, the three Federalist Society network members, joined by Justice Kennedy, pen a strong defense of federalism and the separation of powers as the key “structural protections” of liberty found in the Constitution:

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The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

As discussed, it is and always has been a priority of the Federalist Society network to promote and protect federalism and the separation of powers, what several members refer to as the “twin doctrines of the structural constitution.” If there is a unifying principle or something that approximates orthodoxy within the Federalist Society, this is surely the belief. The joint dissent, penned by three prominent Federalist Society members, succinctly and emphatically illustrates this opinion. More important, it illustrates their disappointment with the Chief Justice, a fellow Federalist Society network member, for “disregard[ing]” this “truth” and for placing “liberty at peril” by upholding the Individual Mandate portion of the ACA. Further, in its closing section, the joint dissent accuses the majority [read Chief Justice] of “vast judicial overreaching,” of “undermining state sovereignty” and of rewriting congressional legislation. Unsatisfied with the partial victory on the Medicaid expansion, the dissenting Justices announce that they “would find the [Affordable Care] Act invalid in its entirety.”

Excerpted from "Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution" by Amanda Hollis-Brusky. Published by Oxford University Press. Copyright 2015 by Amanda Hollis-Brusky. Reprinted with permission of the publisher. All rights reserved.


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