NATIONAL FEDERATION OF BUSINESS V. SEBELIUS: A DECISION FOR THE AGES A COMMENT ON CHIEF JUSTICE ROBERTS’ MA...
the Commerce Clause. Seegenerally ...
The major surprisein National Federation was Justice Kennedy’s deci...
Commerce Clause, ChiefJustice Roberts ...
Moses Luski is a Partner in Shumakers Charlotte, North Carolina office whosepractice area is commercial real estate. He ha...
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National Fed Of Business V Sebelius 2012 A Decision For The Ages (2)

Published on: Mar 3, 2016
Source: www.slideshare.net


Transcripts - National Fed Of Business V Sebelius 2012 A Decision For The Ages (2)

  • 1. NATIONAL FEDERATION OF BUSINESS V. SEBELIUS: A DECISION FOR THE AGES A COMMENT ON CHIEF JUSTICE ROBERTS’ MAJORITY OPINION I. The Conventional Wisdom Earlier this year, prior to the oral arguments before the United StatesSupreme Court (the “Court”) in National Federation of Business, et al. v.Sebelius ( “National Federation” case), 132 S.Ct. 2566 (2012), I gave a talk to abusiness group on the likely outcome of the National Federation case. InNational Federation, the petitioner challenged the constitutionality of the PatientProtection and Affordable Care Act (the “Affordable Care Act”), in whichCongress reformed the national market for healthcare products and services. Likemany of my fellow bar members, I wanted to handicap the case, which had beenthe subject of an inordinate amount of publicity. If you believed the hue and cry,the case represented the “death” (pun intended) of the Republic and theestablishment of socialism, tyranny, and totalitarianism. The heart of thechallenge to the Affordable Care Act was an objection to its “individualmandate,” which compels an individual to purchase health insurance on pain offinancial penalty. I prepared for my talk by reviewing all the federal circuit Court ofAppeals cases that had ruled on the constitutionality of the Affordable Care Act,focusing specifically on their treatment of the individual mandate. I must admitthat at the beginning of this exercise, I was predisposed to the conclusion that thelegislation would be upheld under the Commerce Clause of the United StatesConstitution, U.S. Const. art. I, §8, cl. 3 (“Commerce Clause”), for the followingreasons: First, an appellate court, generally, must give great deference whenreviewing the constitutionality of legislation. See generally National Federation132 S. Ct. at 2593. This rule of construction gives appropriate deference to thevoice of the people, which is most directly expressed by the legislature and, forthe most part, leaves the appellate court in the position of an umpire who rulesbased on established rules in the process, with minimum leverage to judiciallylegislate new rules. See generally Senate Hearings 109-158, Hearings on theNomination of John G. Roberts to be Chief Justice of the Supreme Court of theUnited States, 109th Cong. (Sept. 2005). Second, I found it inconceivable that thelegislative history and related legislative fact-finding accompanying theenactment of the Affordable Care Act would not make the requisite connectionbetween the individual mandate, its effect on the national health care market, andits subsequent effect on interstate commerce. Third and finally, while not aconstitutional law expert, I knew that with the demise of Lochner v. New York,198 U.S. 45 (1905), as established in West Coast Hotel Co. v. Parrish, 300 U.S.379 (1937), the United States Supreme Court had gotten out of the business ofinvalidating Congressional legislation regulating business (i.e., non-economicinterests) on the basis of a violation of substantive due process and, by analogy, #411562
  • 2. the Commerce Clause. Seegenerally United Statesvs. Lopez, 514 U.S. 549, 603 (1995) (Souter, J.) (dissenting, discussing therelationship between substantive due process and the Commerce Clause). After a couple of hours of reading the cases, my suspicions wereconfirmed. This was not a hard case at all. Under the Court’s expansiveinterpretation of the plenary power granted to Congress by the Commerce Clause,and as established by a line of cases commencing in 1937, the Affordable CareAct was clearly constitutional under the Commerce Clause. See generallyNational Federation, 132 S. Ct. at 2609 (Ginsberg, J., dissenting) (discussing theapplicable Commerce Clause precedent). Thus informed, I handicapped the case as follows: (1) voting to upholdconstitutionality, would be Justices Ginsburg, Breyer, Sotomayor, and Kagan (the“Liberal Wing”); (2) voting to declare unconstitutional, would be Chief JusticeRoberts, and Justices Thomas, Scalia, and Alito (the “Conservative Wing”); (3)Swing Vote: Justice Kennedy, a moderate conservative, who given theoverwhelming precedent in favor of upholding constitutionality under theCommerce Clause, would so vote. My conclusions fell within the conventionalwisdom as to how the case would be decided. II. Hobson’s Choice The manner in which the results of the National Federation case werecommunicated by the press was comic but telling. At first CNN reported thelegislation had been declared unconstitutional. Presumably, the eager reporterscouring the opinion stopped at the portion of the opinion declaring the legislationunconstitutional under the Commerce Clause. Having continued to read on, thereporter would have found that Chief Justice Roberts found the legislationconstitutional under Congress’s plenary power to levy taxes. Const. art 1, §8, cl.1. As will be discussed, in this bit of indirection lies a clue to the greatness ofChief Justice Roberts’s opinion. CNN quickly corrected itself and announced thatthe constitutionality of the Affordable Care Act had been upheld. When I served as a law clerk to the late Justice J. Frank Huskins of theNorth Carolina Supreme Court, one of our monthly rituals was to strategize aboutwhich cases we would select to be assigned to us for the writing of an opinion.As I recall, each Justice would select a case based on seniority. Justice Huskinsreferred to the last case as “Hobson’s Choice.” “A ‘Hobson’s Choice’ is a freechoice in which only one option is offered. . . The phrase is said to originate withThomas Hobson, a livery stable owner in Cambridge, England. To rotate the useof his horses, he offered his customers the choice of either taking the horse in thestall nearest the door or taking none at all.” Wikipedia, Hobson’s Choice,http://en.wikipedia.org/wiki/Hobson%27s_choice (last visited October 8, 2012).Thus, as to the final case, the Justice to whom it was assigned actually had nochoice at all. When we knew we had “Hobson’s Choice,” we carefully “vetted”our earlier picks, so that when Hobson’s Choice came our way, we would get acase we wanted. #411562
  • 3. The major surprisein National Federation was Justice Kennedy’s decision to vote in favor ofdeclaring the legislation unconstitutional as an invalid exercise of the CommerceClause. I contend that Justice Kennedy’s decision left Chief Justice Roberts witha Hobson’s Choice. I further contend that not only did Chief Justice Roberts havethe wisdom to recognize he was left with a Hobson’s Choice, but in turnbrilliantly inflicted a Hobson’s Choice of his own on the Liberal Wing thatwanted to uphold the legislation. While it is true that Chief Justice Roberts was philosophically andjudicially inclined to vote with the Conservative Wing, he had no choice but tovote with the Liberal Wing and assign himself the writing of the opinion toprevent significant damage to the reputation of the Court and to preserve forfuture adjudication his strong interest in curbing federal intrusion into theeconomic affairs of businesses and individuals. In effect, by joining the majority,Chief Justice Roberts wisely decided to retreat and live to fight another day. Whydo I say this? For the Court to have overruled the Affordable Care Act in the faceof such obvious Commerce Clause precedent as established by numerous UnitedStates Supreme Court cases dating back to 1937, would have brought theSupreme Court into disrepute and threatened its exercise of its crucial power ofjudicial review which was established by Chief Justice Marshall in the seminalcase of Marbury v. Madison, 5 U.S. 137 (1803). “Edward Levi, distinguishedlawyer, legal scholar and legal educator who served as Dean of the University ofChicago Law School once noted that the ‘function of articulated judicialreasoning is to help protect the Court’s moral power by giving some assurancethat private views are not masquerading as public views.’” See Rodney A. Smolla,Let Us Now Praise Famous Judges: Exploring the Roles of Judicial “Intuition”and “Activism” in American Law. 4 U. of Rich. L. Rev. 39 (2005) (quoting DeanLevi). Clearly, had the Court ruled to strike down the legislation, no amount oflegal reasoning would be sufficient to explain why the Court was suddenlyabandoning 75 years of clear precedent to overturn the most importantCongressional enactment of the new century. It would have been seen as a primeexample of the dreaded “disease” of judicial activism with unforeseenconsequences for the status and prestige of the Court. Further, the doctrine ofjudicial review, as established in Marbury v. Madison and which is etched on thewall of the Supreme Court Building: “It is emphatically the province and the dutyof the Judicial Department to say what the law is.” Marbury v. Madison, 5 U.S. at177, would have been put at risk. The primacy and power of Marbury v. Madisonwould have been threatened. As mentioned, before Chief Justice Roberts would join the majority, heinflicted a Hobson’s Choice of his own on the Liberal Wing. They would have toaccept insertion of language within the majority opinion indicating that theAffordable Care Act was unconstitutional under the Commerce Clause. Thislanguage is clearly a reversal of the trend of the Commerce Clause cases and willserve notice that in future cases the Court may not be as lenient in its review ofeconomic regulation by the government. By this brilliant strategy, Chief JusticeRoberts has taken the long view and pushed forward a doctrinal change which canbear fruit in future cases. Regardless of one’s position on the scope of the #411562
  • 4. Commerce Clause, ChiefJustice Roberts is to be praisedand admired for framing the issue of the limits of the Commerce Clause in amanner that can be developed in subsequent cases in a manner consistent withcommon-law adjudication. By framing the issue in its proper light, Chief JusticeRoberts advanced his own quest to limit the exercise of government power overprivate economic interests; advanced the constitutional doctrine of Separation ofPowers; and preserved and possibly enhanced the prestige of the Court. III. A Masterpiece of Indirection The seminal case of Marbury v. Madison has gained legendary status as amasterpiece of indirection. Richard A. Harris & Daniel J. Tichenor, A History ofthe U.S. Political System: Ideas, Interests, and Institutions 44 (1st ed. 2010). InMarbury v. Madison, Chief Justice Marshall turned a squabble between outgoingPresident Adams and Chief Justice Marshall’s cousin, the incoming PresidentJefferson, over the service of a judicial commission into an opportunity to assertthe standing of the Judicial Department in the recently established tripartiteconstitutional system which went into effect on March 4, 1789, after ratificationby the States. In this case, Chief Justice Marshall went out of his way to castigatethe Executive Department (i.e., his cousin) by reminding it that ours was agovernment of laws and not of men (thereby enhancing the Judicial Department).More importantly, Chief Justice Marshall, by adopting the doctrine of judicialreview, established the primacy of the Judicial Department in the interpretation ofstatutory and constitutional law. Adding to the mystique of the case is that underthe facts of the case, Chief Justice Marshall, who was serving concurrently asSecretary of State under President Adams, was the individual charged withserving the disputed commission and was blocked in this attempt by his cousin,President Jefferson. Was “bad blood” behind one of the most important cases inU.S. Constitutional history? I will leave that for others to ponder. Similarly, I believe that Chief Justice Roberts’s majority opinion inNational Federation will also be viewed as a masterpiece of indirection. At thesame time he handed the forces seeking approval of the Affordable Care Act amajor victory, he planted within his majority opinion the seeds of its destruction;embedding, if you will, the equivalent of a “stuxnet” virus in the heart of theopinion. #411562
  • 5. Moses Luski is a Partner in Shumakers Charlotte, North Carolina office whosepractice area is commercial real estate. He has maintained an interest inconstitutional adjudication since his service as a law clerk in the North CarolinaSupreme Court. Moses Luski First Citizens Bank Building 128 South Tryon Street, Suite 1800 Charlotte, North Carolina 28202- 5013 Phone: (704) 375-0057 Ext. 2161Moses’ Practice Areas: Fax: (704) 332-1197• Acquisition and Sale of Real Estate mluski@slk-law.com• Real Estate Development www.slk-law.com• Leasing• Real Estate Finance and Lending• Title Examinations• Foreclosures/Loan Workouts• Disposition of REO Portfolios• Opinion Practice

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