First post on the Courts and the individual mandate
I. Overview
As I said at the end of my earlier post, what happens in the Courts now that one U.S. District Judge has ruled the individual mandate to be unconstitutional is a complicated matter. I predict that this case will eventually be heard by the Supreme Court, but not until this case and a few others have been ruled upon in the Courts of Appeals. As to the ultimate outcome, I am not sure. This issue of the constitutionality of the individual mandate might look simple on the surface, but it is in fact very complicated. Sorting through this matter requires an examination of
I will only address the individual mandate in relation to the Constitution's Commerce Clause and Necessary and Proper Clause. I am not going to address any issues regarding the 10th Amendment or whether the penalty under the individual mandate is a tax (and the Judge Hudson in Virginia ruled it was not a tax).
It might seem that I am arguing for upholding the individual mandate or that I am in favor of the individual mandate and the PPACA. However, I am already on record as saying that I feel the PPACA does not really reform anything because our health care system is still based on and entrenched in insurance and that I don't care for the individual mandate. Nevertheless, it seems to me that the law as it exists now is mostly in favor of upholding the individual mandate. However, that law could change, and I will explain how that might happen.
Overall, I think the question of whether the individual mandate is constitutional comes down to a matter of drawing a line regarding Congressional power under the Commerce Clause and the Necessary and Proper Clause of the Constitution. Regardless of whether the individual mandate is upheld or struck down, there is a need to more clearly define how far that power can go.
II. The nature of the proceeding
Judge Hudson's full ruling (in the form of a "memorandum opinion") can found here. What follows in II and III is a "Readers Digest" version of what the Judge's ruling does and does not do.
The case was filed by the Commonwealth of Virginia as plaintiff and Kathleen Sebelius, Secretary of the Department of Health and Human Services, as Defendant. Virginia was seeking declaratory and injunctive relief--as in a declaration that the individual mandate is unconstitutional under the Commerce Clause and the 10th Amendment and an order that would prohibit the enforcement of the individual mandate.
The specific proceeding on which Judge Hudson ruled was a "summary judgment" proceeding. In simple terms, a summary judgment decides the case without a trial. If summary judgment is granted, the case is essentially finished in the trial court. The order granting summary judgment is in technical terms a "final judgment" and then the case can be appealed. In our legal system, the general rule is that any decision by a trial court cannot be appealed until there is a final judgment in the trial court. In this this case, both sides filed motions for summary judgment. Judge Hudson denied the federal government's motion and granted Virginia's motion for summary judgment.
As a result, the case will soon become a "final judgment" and can then be appealed to the 4th Cirsuit Court of Appeals. More on that in the section on typical appellate procedure and practice.
III. The Judge's ruling
Judge Hudson ruled that the individual mandate was unconstitutional because
Judge Hudson's ruling also contained what could be a central part of the appeal of this case and any other cases related to the PPACA. He stated that "If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution." (Hudson opinion, p. 19). The potential significance of this statement will be discussed in VI.C.5 in the next post. For now I will say that this is relevant to some of my previous analysis:
It should also be noted that although Virginia sought to have the individual mandate declared unconstitutional, Virginia also requested that, in the event it got such a declaration, the Court strike down the entire PPACA. This relates to the concept of "severability." Typically, statutory schemes have a "severability clause" which states that if any one portion of the statutory scheme is found invalid the rest of the law will still be valid. Without such a clause, if one portion of the statutory scheme is found invalid, the law could be subject to invalidation in its entirety. For some unknown reason, whoever wrote the PPACA did not bother to put in a severability clause. This was a boneheaded mistake of semi-epic proportions. Even so, Judge Hudson ruled that the individual mandate was severable from the rest of the PPACA. In other words, he did not declare the entire PPACA invalid. (See Hudson opinion, pp. 38-40). I am not going to address severability any further.
IV. Appellate procedure and how it could affect this issue
This is how the process usually works:
So, the only way this case is going to get to the Supreme Court is via a petition for cert after the 4th Circuit Court of Appeals has reached a decision. According to Rule 10 of the Supreme Court Rules,
V. Factors that could influence the Supreme Court's decision and my thoughts on how this will play out
I should say "decisions" because the Supremes would first have to decide to take the case and then decide the actual case. Both decisions will be influenced by some common factors which are general to our judicial process. I will try to present those factors in a way that is relatively painless for those who have not studied and experienced such matters.
I am going to save discussion of factors specifically related to the Commerce Clause and Necessary and Proper Clause for section VI in the next post.
A. Precedent
First is the concept of "precedent." For those who think that courts should never make law, you are flat out wrong. Under our overall system, not only do courts make law, but such activity is necessary. That explanation is for another time, but for now you are just going to have to accept that courts make law. That law primarily takes the form of precedent, or earlier court decisions. Precedent is established not by the trial courts (which for this post means the U.S. District Courts) but by the appellate courts (the Courts of Appeals and the Supreme Court). Courts are supposed to follow precedent. In other words, if a District Court wants to decide a given question one way, but the Supreme Court has ruled on that same question in another way, the District Court must follow the Supreme Court's ruling. District Courts are also supposed to follow precedent from the Courts of Appeal, and the Courts of Appeal are supposed to follow Supreme Court precedent.
Precedent is what gives the judicial system stability and a level of certainty. Without either of those things, the whole system would be out of control and would be rampant with inconsistency, arbitariness, corruption, and injustice. I must say that the system already has all of those things, but the situation would be worse to an amazing degree without the goal of adhering to precedent.
Our judicial system is designed to change precedent when the need arises, BUT the system is also designed for change to generally occur gradually rather than suddenly. This helps to maintain stability. It also encourages careful thought and reasoning. It also helps to put a limit on "result-oriented" decisions. In other words, it puts a limit on judges' ability to decide what result they want in a given case and then manipulating (or ignoring) the law and facts to fit their preordained result.
B. Narrowness
Next is the idea of "narrowness." Recall that I predicted that any decision by the Supreme Court in this case could have effects that go way beyond this one case. That is a possibility in many cases. Appellate courts generally try to avoid such far-reaching effects by making their decisions "narrow."
One way of making a "narrow" decision relates to my explanation of "final judgment," namely that a "final judgment" occurs when "all issues needed to dispose of the case have been determined. This does not necessarily mean that all questions and issues have been resolved." I cited Judge Hudson's decision as an example. He could have ruled that the individual mandate violated the 10th Amendment of the Constitution, and he could have issued an injunction stopping enforcement of the individual mandate, but he didn't do any of that. Instead, he issued what is in effect a narrow ruling--only that the individual mandate is unconstitutional under the Commerce Clause.
Appellate courts do this to a greater degree than trial courts. Basically what appellate courts do is try to find the simplest and easiest way to decide a case. Often that means appellate courts look to resolve cases without addressing what others would consider to be important. A phrase used in many appellate decisions is "We do not reach that issue because we have decided the case on other grounds."
Another way to render a narrow decision is to structure it so that its effect is limited as much as possible to the specific case being decided. In other words, a court will take steps to try to make a decision not applicable beyond the facts of that case.
The effort to make decisions narrow might not seem to make sense. I am not going to try to explain all the reasons why the effort does make sense, for that would take way too long. I will, however, point out that from a logistical standpoint, narrow decisions are helpful to the judicial system. A narrow decision can aid an appellate court to use its time and resources more efficiently. This is particularly true for the U.S. Supreme Court. The Supreme Court takes only the most difficult and important cases. Each case requires a great deal of thought, research, and discussion. The narrower the decision coming up from the Court of Appeals, the more the Supreme Court can effectively devote its resources to fully examine and analyze the issues presented by that decision. That's a good thing.
Moreover, having the Supreme Court issue narrow rulings is also a good thing. The Supreme Court is the ultimate arbiter in our system on constitutional issues. Indeed, much of the Supreme Court's work involves interpreting and applying constitutional principles. These principles are at the very foundation of our system of government and society. Thus, any decisions involving them can have far-reaching effects AND have unintended consequences. Making decisions narrow reduces the possibility of such consequences. Also, narrow decisions from the Supreme Court aid in the stability I discussed in relation to the principle of precedent.
During most of my lifetime, I feel the Supreme Court has largely adhered to these principles of precedent and narrowness. More to the point, I think they will adhere to them in this particular matter of the individual mandate.
C. What the discussion so far means for this Virginia case and other PPACA cases
I think the Virginia case will be heard by the Supreme Court. However, I also think the Supreme Court is not going to hear the Virginia case anytime soon. Moreover, when that case reaches the Supremes, their decision is going to be narrow. Now for the explanation...
D. This case could be huge in terms of its effect.
As noted, Judge Hudson ruled that the individual mandate of the PPACA is unconstitutional because it has no foundation in the Commerce Clause AND Judge Hudson's ruling also partially involves the Necessary and Proper Clause of the Constitution. These two clauses have been bases for the expansion of Congressional (and thus federal) power. And now Judge Hudson's ruling is at the very least an attempt to limit such power. However, Judge Hudson's ruling could also become a basis for doing more than limiting Congressional and federal power. As I said in my lengthy health care post, a ruling that the individual mandate is unconstitutional "could set the stage for dismantling all kinds of laws." In other words, such a ruling could become the basis for attempts to get rid of all kinds of existing laws. On the other hand, a ruling that the individual mandate is constitutional could set the stage for even more expansion of Congressional and federal power. Both of these possibilities are not necessarily good. Stated differently, the stakes are potentially very high.
Given the potential stakes, the need for a very carefully crafted decision will also be very high. In other words, whatever the decision will be, it will need to be as narrow as possible.
E. The Virginia case is not going to get to the Supreme Court quickly.
I have already explained that 1) I think the Virginia case will get to the Supremes via a cert petition and 2) it is not going to get to the Supremes via any of the ways that skip the Court of Appeals. This means that at a minimum the Virginia case is going to have to be submitted to and decided by the 4th Circuit Court of Appeals before it goes to the Supreme Court. That is not likely to happen quickly.
Furthermore, even if that would happen quickly, it is unlikely that the Supreme Court would automatically take the Virginia case as soon as it possibly could. This is where narrowness starts to come into play. There are other cases involving the PPACA, and in some of those, District Courts have already ruled the PPACA to be constitutional. In my opinion, it is likely that the Supreme Court would want to wait to see how those cases are resolved in the Courts of Appeals before taking any case involving the PPACA. Why? Because that would present an opportunity for the issues to be narrowed before they get to the Supreme Court. Again, this process will not happen quickly.
There is another practical reason why the Supreme Court will likely be in no rush to take the Virginia case and the other PPACA cases, namely that the matter might get resolved or semi-resolved before it gets to the Supreme Court. While I still think the PPACA will not be repealed, that is a possibility--one made greater by what I described earlier as Obama's complete lack of backbone. Also, it is possible that the various Courts of Appeals that will hear these cases could all agree. I don't think that is likely, but it could happen, and if it did, the Supreme Court might decide to let those decisions stand.
The bottom line as to timing is that there are many legitimate, practical reasons why the Supreme Court would not want to get the PPACA cases quickly, and I don't see any compelling reason for the Supremes to feel otherwise.
And now the really fun stuff--the legal analysis of the individual mandate under the Commerce Clause and the Necessary and Proper Clause--will be in the next post.
As I said at the end of my earlier post, what happens in the Courts now that one U.S. District Judge has ruled the individual mandate to be unconstitutional is a complicated matter. I predict that this case will eventually be heard by the Supreme Court, but not until this case and a few others have been ruled upon in the Courts of Appeals. As to the ultimate outcome, I am not sure. This issue of the constitutionality of the individual mandate might look simple on the surface, but it is in fact very complicated. Sorting through this matter requires an examination of
- the nature of the proceeding before the Judge;
- the Judge's ruling (what it did and did not do);
- typical appellate procedure and practice, including how the Supreme Court operates; and
- factors that could influence the Supreme Court's decision.
I will only address the individual mandate in relation to the Constitution's Commerce Clause and Necessary and Proper Clause. I am not going to address any issues regarding the 10th Amendment or whether the penalty under the individual mandate is a tax (and the Judge Hudson in Virginia ruled it was not a tax).
It might seem that I am arguing for upholding the individual mandate or that I am in favor of the individual mandate and the PPACA. However, I am already on record as saying that I feel the PPACA does not really reform anything because our health care system is still based on and entrenched in insurance and that I don't care for the individual mandate. Nevertheless, it seems to me that the law as it exists now is mostly in favor of upholding the individual mandate. However, that law could change, and I will explain how that might happen.
Overall, I think the question of whether the individual mandate is constitutional comes down to a matter of drawing a line regarding Congressional power under the Commerce Clause and the Necessary and Proper Clause of the Constitution. Regardless of whether the individual mandate is upheld or struck down, there is a need to more clearly define how far that power can go.
II. The nature of the proceeding
Judge Hudson's full ruling (in the form of a "memorandum opinion") can found here. What follows in II and III is a "Readers Digest" version of what the Judge's ruling does and does not do.
The case was filed by the Commonwealth of Virginia as plaintiff and Kathleen Sebelius, Secretary of the Department of Health and Human Services, as Defendant. Virginia was seeking declaratory and injunctive relief--as in a declaration that the individual mandate is unconstitutional under the Commerce Clause and the 10th Amendment and an order that would prohibit the enforcement of the individual mandate.
The specific proceeding on which Judge Hudson ruled was a "summary judgment" proceeding. In simple terms, a summary judgment decides the case without a trial. If summary judgment is granted, the case is essentially finished in the trial court. The order granting summary judgment is in technical terms a "final judgment" and then the case can be appealed. In our legal system, the general rule is that any decision by a trial court cannot be appealed until there is a final judgment in the trial court. In this this case, both sides filed motions for summary judgment. Judge Hudson denied the federal government's motion and granted Virginia's motion for summary judgment.
As a result, the case will soon become a "final judgment" and can then be appealed to the 4th Cirsuit Court of Appeals. More on that in the section on typical appellate procedure and practice.
III. The Judge's ruling
Judge Hudson ruled that the individual mandate was unconstitutional because
Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.](Hudson opinion, p. 24). Later in the opinion he said the following:
A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme.(Hudson opinion, p. 37). To my knowledge, Judge Hudson is correct on this point, but, as I will try to explain in the next post, that does not necessarily mean there is no precedent which supports the constitutionality of the individual mandate. Indeed, I think there is some strong precedent in favor of the individual mandate, and Judge Hudson's opinion does a very poor job in addressing that precedent. Furthermore, to my knowledge, there is also no precedent that directly says what the individual mandate seeks to do is outside of the Commerce Clause power. As I will explain in the next post, that makes this question one of "first impression," and that is just one factor that makes this issue complicated.
Judge Hudson's ruling also contained what could be a central part of the appeal of this case and any other cases related to the PPACA. He stated that "If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution." (Hudson opinion, p. 19). The potential significance of this statement will be discussed in VI.C.5 in the next post. For now I will say that this is relevant to some of my previous analysis:
At first blush it might seem that, given the current composition of the Supremes, the chances would be very good that the individual mandate would be declared unconstitutional. However, such a ruling could have effects that go way beyond health care reform. Such a ruling could set the stage for dismantling all kinds of laws. Now I know that some people think that is a good thing, but I warn those folks to be careful what you ask for. That dismantling could become one huge, completely out of control metaphorical snowball. Trying to control the dismantling will be next to impossible.In any event the individual mandate was the only portion of the PPACA Judge Hudson declared unconstitutional. His ruling was made pursuant to the Commerce Clause only and did not address the 10th Amendment. Also, he denied Virginia's request for injunctive relief. What this means is that implementation and enforcement of the of the individual mandate can proceed. That might seem odd, but the Judge's reasoning was that there was no need to grant an injunction against the individual mandate because it would not go into effect until 2013 at the earliest. As Judge Hudson put it, "Historically, federal district courts have been reluctant to invoke the extraordinary remedy of injunctive relief against federal officers where a declaratory judgment is adequate...In this Court's view, the award of declaratory judgment is sufficient to stay the hand of the Executive Branch pending appellate review." (Hudson opinion, p. 41).
It should also be noted that although Virginia sought to have the individual mandate declared unconstitutional, Virginia also requested that, in the event it got such a declaration, the Court strike down the entire PPACA. This relates to the concept of "severability." Typically, statutory schemes have a "severability clause" which states that if any one portion of the statutory scheme is found invalid the rest of the law will still be valid. Without such a clause, if one portion of the statutory scheme is found invalid, the law could be subject to invalidation in its entirety. For some unknown reason, whoever wrote the PPACA did not bother to put in a severability clause. This was a boneheaded mistake of semi-epic proportions. Even so, Judge Hudson ruled that the individual mandate was severable from the rest of the PPACA. In other words, he did not declare the entire PPACA invalid. (See Hudson opinion, pp. 38-40). I am not going to address severability any further.
IV. Appellate procedure and how it could affect this issue
This is how the process usually works:
- A case reaches "final judgment" in the District Court, meaning that all issues needed to dispose of the case have been determined. This does not necessarily mean that all questions and issues have been resolved. For instance, a given case could involve some factual issues on which each side have completely different positions, such as the plaintiff says that a certain event happened at night while the defendant insists that event happened during the day. Let's assume that the plaintiff is correct and would usually win the case on the basis of that fact. Assume also that there exists a legal technicality which could end up dismissing the case. The District Court would likely dismiss the case based on that technicality, AND the District Court would not have to make any ruling on the key factual dispute. In other words, the District Court would decide only the issue it needed to dispose of the case, and the case would have reached "final judgment" even though many issues were never ruled upon. Judge Hudson's ruling is another example. Even though he did not rule on the 10 Amendment claims, his ruling on the Commerce Clause was enough to dispose of the case.
- As a general rule, only "final judgments" can be appealed. There are exceptions, but none of them apply in this case, so I am not going to discuss those. For purposes of this post, it suffices to say that the granting of "summary judgment" for Virginia disposed of all issues needed to make this case a "final judgment." This is true even though Judge Hudson did not rule on all the issues (such as the 10th Amendment).
- Once a final judgment is entered at the District Court, the loser of the case can appeal the case to the Court of Appeals.
- In this case, the 4th Circuit Court of Appeals will hear the appeal.
- Once the Court of Appeals makes a decision and enters a judgment, then the losing party can seek an appeal in the Supreme Court.
- The losing party in the Court of Appeals generally seeks review by the Supreme Court by filing a "petition for certiorari," or "cert" for short. [28 U.S.C. § 1254 (1)].
- It is important to note that the Supreme Court has discretion over whether it will consider any given case. The Courts of Appeals have no choice--they have to consider every case that is appealed from the District Courts. However, the Supreme Court gets to decide whether of not it will hear any given case.
Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:Note that it is still discretionary as to whether the Supreme Court accepts or answers the certified question. Note also that the Supreme Court has chosen to address a certified question only four times in almost 65 years. And the Supremes are not likely to make this case #5, but I will explain that in V.E below. Suffice it to say that the acceptance of certified questions is rare. The last way to skip the Court of Appeals is to file for an extraordinary writ pursuant to 28 U.S.C. § 1651, which says "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." However, Rule 20 of the Supreme Court Rules makes this option very, very difficult. Rule 20(1) says*******(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.
Issuance by the Court of an extraordinary writ authorized by 28 U. S. C. §1651(a) is not a matter of right, but of discretion sparingly exercised. To justify the granting of any such writ, the petition must show that the writ will be in aid of the Court's appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court.No one is going to be able to actually satisfy these requirements in this case, and even if they did, the Supreme Court still could refuse to hear the case. I will explain in V.E below why the Supremes would not be inclined to grant an extraordinary writ in this case.
So, the only way this case is going to get to the Supreme Court is via a petition for cert after the 4th Circuit Court of Appeals has reached a decision. According to Rule 10 of the Supreme Court Rules,
Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:It is likely that all of these factors will be present--after some time has passed. Given that other District Courts have ruled the PPACA to be constitutional, there is a chance that there could be some conflicting decisions among the Courts of Appeals. Even if that does not happen, my guess is that the constitutionality of the individual mandate is an important question of federal law that should be settled by the Supreme Court. Thus, it is my belief that eventually the question of the constitutionality of the individual mandate will eventually find its way before the Supreme Court via a petition for writ of certiorari.
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;*******(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
V. Factors that could influence the Supreme Court's decision and my thoughts on how this will play out
I should say "decisions" because the Supremes would first have to decide to take the case and then decide the actual case. Both decisions will be influenced by some common factors which are general to our judicial process. I will try to present those factors in a way that is relatively painless for those who have not studied and experienced such matters.
I am going to save discussion of factors specifically related to the Commerce Clause and Necessary and Proper Clause for section VI in the next post.
A. Precedent
First is the concept of "precedent." For those who think that courts should never make law, you are flat out wrong. Under our overall system, not only do courts make law, but such activity is necessary. That explanation is for another time, but for now you are just going to have to accept that courts make law. That law primarily takes the form of precedent, or earlier court decisions. Precedent is established not by the trial courts (which for this post means the U.S. District Courts) but by the appellate courts (the Courts of Appeals and the Supreme Court). Courts are supposed to follow precedent. In other words, if a District Court wants to decide a given question one way, but the Supreme Court has ruled on that same question in another way, the District Court must follow the Supreme Court's ruling. District Courts are also supposed to follow precedent from the Courts of Appeal, and the Courts of Appeal are supposed to follow Supreme Court precedent.
Precedent is what gives the judicial system stability and a level of certainty. Without either of those things, the whole system would be out of control and would be rampant with inconsistency, arbitariness, corruption, and injustice. I must say that the system already has all of those things, but the situation would be worse to an amazing degree without the goal of adhering to precedent.
Our judicial system is designed to change precedent when the need arises, BUT the system is also designed for change to generally occur gradually rather than suddenly. This helps to maintain stability. It also encourages careful thought and reasoning. It also helps to put a limit on "result-oriented" decisions. In other words, it puts a limit on judges' ability to decide what result they want in a given case and then manipulating (or ignoring) the law and facts to fit their preordained result.
B. Narrowness
Next is the idea of "narrowness." Recall that I predicted that any decision by the Supreme Court in this case could have effects that go way beyond this one case. That is a possibility in many cases. Appellate courts generally try to avoid such far-reaching effects by making their decisions "narrow."
One way of making a "narrow" decision relates to my explanation of "final judgment," namely that a "final judgment" occurs when "all issues needed to dispose of the case have been determined. This does not necessarily mean that all questions and issues have been resolved." I cited Judge Hudson's decision as an example. He could have ruled that the individual mandate violated the 10th Amendment of the Constitution, and he could have issued an injunction stopping enforcement of the individual mandate, but he didn't do any of that. Instead, he issued what is in effect a narrow ruling--only that the individual mandate is unconstitutional under the Commerce Clause.
Appellate courts do this to a greater degree than trial courts. Basically what appellate courts do is try to find the simplest and easiest way to decide a case. Often that means appellate courts look to resolve cases without addressing what others would consider to be important. A phrase used in many appellate decisions is "We do not reach that issue because we have decided the case on other grounds."
Another way to render a narrow decision is to structure it so that its effect is limited as much as possible to the specific case being decided. In other words, a court will take steps to try to make a decision not applicable beyond the facts of that case.
The effort to make decisions narrow might not seem to make sense. I am not going to try to explain all the reasons why the effort does make sense, for that would take way too long. I will, however, point out that from a logistical standpoint, narrow decisions are helpful to the judicial system. A narrow decision can aid an appellate court to use its time and resources more efficiently. This is particularly true for the U.S. Supreme Court. The Supreme Court takes only the most difficult and important cases. Each case requires a great deal of thought, research, and discussion. The narrower the decision coming up from the Court of Appeals, the more the Supreme Court can effectively devote its resources to fully examine and analyze the issues presented by that decision. That's a good thing.
Moreover, having the Supreme Court issue narrow rulings is also a good thing. The Supreme Court is the ultimate arbiter in our system on constitutional issues. Indeed, much of the Supreme Court's work involves interpreting and applying constitutional principles. These principles are at the very foundation of our system of government and society. Thus, any decisions involving them can have far-reaching effects AND have unintended consequences. Making decisions narrow reduces the possibility of such consequences. Also, narrow decisions from the Supreme Court aid in the stability I discussed in relation to the principle of precedent.
During most of my lifetime, I feel the Supreme Court has largely adhered to these principles of precedent and narrowness. More to the point, I think they will adhere to them in this particular matter of the individual mandate.
C. What the discussion so far means for this Virginia case and other PPACA cases
I think the Virginia case will be heard by the Supreme Court. However, I also think the Supreme Court is not going to hear the Virginia case anytime soon. Moreover, when that case reaches the Supremes, their decision is going to be narrow. Now for the explanation...
D. This case could be huge in terms of its effect.
As noted, Judge Hudson ruled that the individual mandate of the PPACA is unconstitutional because it has no foundation in the Commerce Clause AND Judge Hudson's ruling also partially involves the Necessary and Proper Clause of the Constitution. These two clauses have been bases for the expansion of Congressional (and thus federal) power. And now Judge Hudson's ruling is at the very least an attempt to limit such power. However, Judge Hudson's ruling could also become a basis for doing more than limiting Congressional and federal power. As I said in my lengthy health care post, a ruling that the individual mandate is unconstitutional "could set the stage for dismantling all kinds of laws." In other words, such a ruling could become the basis for attempts to get rid of all kinds of existing laws. On the other hand, a ruling that the individual mandate is constitutional could set the stage for even more expansion of Congressional and federal power. Both of these possibilities are not necessarily good. Stated differently, the stakes are potentially very high.
Given the potential stakes, the need for a very carefully crafted decision will also be very high. In other words, whatever the decision will be, it will need to be as narrow as possible.
E. The Virginia case is not going to get to the Supreme Court quickly.
I have already explained that 1) I think the Virginia case will get to the Supremes via a cert petition and 2) it is not going to get to the Supremes via any of the ways that skip the Court of Appeals. This means that at a minimum the Virginia case is going to have to be submitted to and decided by the 4th Circuit Court of Appeals before it goes to the Supreme Court. That is not likely to happen quickly.
Furthermore, even if that would happen quickly, it is unlikely that the Supreme Court would automatically take the Virginia case as soon as it possibly could. This is where narrowness starts to come into play. There are other cases involving the PPACA, and in some of those, District Courts have already ruled the PPACA to be constitutional. In my opinion, it is likely that the Supreme Court would want to wait to see how those cases are resolved in the Courts of Appeals before taking any case involving the PPACA. Why? Because that would present an opportunity for the issues to be narrowed before they get to the Supreme Court. Again, this process will not happen quickly.
There is another practical reason why the Supreme Court will likely be in no rush to take the Virginia case and the other PPACA cases, namely that the matter might get resolved or semi-resolved before it gets to the Supreme Court. While I still think the PPACA will not be repealed, that is a possibility--one made greater by what I described earlier as Obama's complete lack of backbone. Also, it is possible that the various Courts of Appeals that will hear these cases could all agree. I don't think that is likely, but it could happen, and if it did, the Supreme Court might decide to let those decisions stand.
The bottom line as to timing is that there are many legitimate, practical reasons why the Supreme Court would not want to get the PPACA cases quickly, and I don't see any compelling reason for the Supremes to feel otherwise.
And now the really fun stuff--the legal analysis of the individual mandate under the Commerce Clause and the Necessary and Proper Clause--will be in the next post.
posted by WCharles @ 1/10/2011 04:40:00 PM
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