A Fall Calendar of Events

For those of you making travel plans and organizing kids' birthday parties around the ACA litigation, here are the dates to keep in mind for the rest of 2010:

October 4: Party reply briefs and amicus curiae briefs due in Virginia v. Sebelius.

October 14: Likely date on which Judge Vinson issues his decision on the United States's motion to dismiss in Florida v. HHS.

October 18: Hearing on the competing motions to dismiss in Virginia v. Sebelius, 9:00 a.m. in Richmond, Virginia, before Judge Hudson.

November 4: Motions for summary judgment due in Florida v. HHS.

November 17: Rough date on which to expect a ruling in Virginia v. Sebelius on the motions for summary judgment? (If the "rocket docket" expectation is 30 days from argument, this would be the date.)

November 23: Memoranda in response to motions for summary judgment due in Florida v. HHS.


December 6: Party reply briefs due in Florida v. HHS.

December 18: Hearing on motions for summary judgment in Florida v. HHS, in Pensacola, Florida, before Judge Vinson.

No word yet on whether DirecTV will offer a special "ACA litigation mix" channel where viewers can tune into commentary on the proceedings from multiple networks simultaneously.

A small disagreement with Barnett as to what is "unprecedented"

by Bradley Joondeph

In his post today at the Volokh Conspiracy, which responds to Gerald Magliocca's post at Concurring Opinions, Randy Barnett makes the following point (quoting a Wall Street Journal article in which Barnett is quoted):

"Such a mandate is unprecedented: 'This is the first time in American history that Congress has claimed to use its power over interstate commerce to mandate, or require, that every person enter into a commercial relationship with a private company,' Mr. Barnett notes. 'As a judicial matter, it’s also unprecedented. There’s never been a court case which said Congress can do this.'"

Fair enough. I have not combed the Statutes at Large or the United States Reports personally to verify that these statements are uncontrovertably true. But I have no reason to doubt Professor Barnett on either point. He is an esteemed professor at Georgetown, very smart, and well versed in these fields of constitutional law. Further, he is a personal acquaintance of mine, whom I have always found to be thoughtful and open-minded.

But the next move Barnett makes in his argument, I think, is subject to question.

Read more-->

<posted 8.25.10>

The minimum coverage provision and the taxing power (part 2)

by Bradley Joondeph

In my prior post, I outlined why I think current law tilts heavily against the states in their claim that the minimum coverage requirement falls outside Congress’s taxing power. Congress has placed ACA §1501 in the Internal Revenue Code; it is enforceable only through the typical means of tax collection; it will raise more than “negligible” amounts of revenue; and Congress had a reasonable (and arguably a strong) basis for concluding that §1501 will promote the “general welfare.” Under governing precedent, and under normal circumstances, that should be enough.

But these cases are anything but garden variety. They are the types of cases, with strong ideological and partisan undercurrents, in which doctrine tends to hold less sway. Stated differently, this is the sort of issue where a judge’s deeply held beliefs are more apt than usual to shade his reading of doctrine. Cf. Lawrence v. Texas and Bush v. Gore.

As a result, I think as important as the best reading of precedent—indeed, more important—are all the plausible readings of precedent. More concretely, is current law sufficiently ambiguous or flexible that five justices of the Supreme Court could hold that the minimum coverage provision exceeds Congress’s taxing power, and is thus unconstitutional (assuming, of course, it also exceeds the commerce power)?

I think the answer is yes.

Read more -->

<posted 8.12.10>

The minimum coverage provision and the taxing power (part 1)

by Bradley Joondeph

The one substantive issue in the litigation that we have yet to address here is the question whether the minimum coverage requirement of ACA §1501 fits within Congress’s taxing power (which is grounded in the General Welfare Clause of Article I, §8, clause 1). To recap, to prevail on their claim that §1501 exceeds Congress’s enumerated powers, the states must show both (a) that it exceeds Congress’s power to regulate interstate commerce, and (b) that it is invalid as a taxing measure, either because it exceeds Congress’s authority to tax or because, although it is within that power, it constitutes a “direct” tax that has not been apportioned according to each state’s population.

As I have written earlier, I think there is a decent argument—though not one I necessarily agree with—that §1501 exceeds Congress’s commerce power. More specifically, I think it would be relatively easy to write a judicial opinion, using current doctrine, to reach that result. Holding that §1501 exceeds Congress’s taxing power, though, would seem to be more challenging. Let me explain why.

Read more -->

<posted 8.11.10>

Virginia v. Sebelius update; U.S. motion to dismiss denied by federal judge

by Eric Lightman

The court settled the Article III standing concerns by ruling that Virginia could represent the interests of its citizens in its ‘quasi-sovereign’ capacity. Citing the South Carolina v. Regan Court’s criteria for an exception to the Tax Injunction Act bar, the court concluded that the circumstances of this case fall within the narrow limits proscribed by that Court. “Because Virginia will never be assessed a penalty under the PPACA and will thus never have the opportunity to pay the fine and request a refund, ‘Congress did not prescribe an alternative remedy to the plaintiff in this case, the Act does not bar this suit.’” (quoting Regan.) In response to the Secretary’s argument that the intention of the Virginia legislature in enacting the law was solely to create a conflict with federal law and thus a basis for standing, the court stated: “[d]espite its declaratory nature, it is a lawfully enacted part of the laws of Virginia. The purported transparent legislative intent underlying its enactment is irrelevant.” The court held that Virginia’s interest in enacting and enforcing laws within its own jurisdiction is sufficient to establish an injury-in-fact when a conflicting federal law will negate this sovereignty.

The court settled the ripeness concerns in favor of Virginia upon its finding that although the challenged provisions of the PPACA will not go into effect until 2014, the taxpayers will begin preparations for enrolling in private insurance far sooner. Likewise, the state “will have to revamp its entire health insurance program to ensure compliance, particularly with respect to Medicaid…[t]his process will entail more than simple fine tuning. Unquestionably, this regulation radically changes the landscape of health insurance in America.”

The court next assessed the merits of the case to determine whether Virginia’s complaint pleaded a legally sufficient cause of action to overcome the 12(b)(6) motion to dismiss. With respect to the merits of the challenge to Congress’ Commerce Clause authority to impose an individual insurance mandate, the court noted: “[t]he guiding precedent is informative, but inconclusive. Never before has the Commerce Clause and associated Necessary and Proper Clause been extended this far.” The closer question for the court was whether the regulatory effect of the penalty is within the federal government’s tax powers, specifically its authority to regulate individual behavior through a tax. The court asserted: “[n]o reported case from any appellate federal court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce… the court at this stage cannot conclude that the Complaint fails to state a cause of action. The Secretary’s Motion to Dismiss will therefore be denied.”

<posted 8.2.10>

The Commerce Clause, part 2: What the Supreme Court might do

by Bradley Joondeph

As my previous post attempted to explain, both of the principal arguments as to why the ACA’s “minimum essential coverage requirement” (§1501) exceeds Congress’s commerce power concern the breadth of Congress’s authority to select appropriate means for regulating interstate commerce. One argument is that, although Congress can sometimes regulate non-commercial intrastate activity when necessary to a broader regulatory scheme (which scheme regulates interstate commerce), that authority does not extend to the regulation of inactivity. In other words, there is a fundamental distinction between activity and inactivity for purposes of the Commerce Clause, regardless of either’s impact on interstate commerce. A second (and very similar) argument is that, no matter the necessity of regulating a given activity (or inactivity) as part of a broader regulatory scheme, it is never “proper” to coerce individuals into a commercial transaction with a private third party as a regulation of interstate commerce. No matter the connection to interstate commerce, this means is qualitatively out of bounds under the Constitution.

Read more-->

<posted 7.31.10>

The commerce power and the requirement to "maintain minimum essential coverage"

by Bradley Joondeph

The provision of the ACA that has generated the most controversy thus far, and which is the most vulnerable constitutionally, is § 1501, the “requirement to maintain minimum essential coverage.” The principal argument against its constitutionality is that it exceeds the powers granted to Congress under Article I. In particular, the states have presented two arguments: (1) that it exceeds both the commerce power and the taxing power (as augmented by the Necessary and Proper Clause); and (2) that even if it falls within the taxing power (but still exceeds the commerce power), it is unconstitutional because it is an unapportioned “direct” tax (in violation of Article I, §§4 and 9). Here, I attempt to analyze the Commerce Clause question, a necessary component of either argument.

Read more-->

<posted on 7.28.10>

The four other lawsuits - summaries

by Eric Lightman

Summaries have been posted on Litigation Blog 8 of the complaints filed by the Thomas More Law Center, Liberty University, the Lt. Governor Kinder of Missouri, and the Association of American Phsyicians & Surgeons. We will keep you informed of all developments in these cases in the future.

<posted 7.23.10>

"Commandeering" and the ACA's Medicaid amendments (part 3)

by Bradley Joondeph

So we come to the ultimate question concerning the states’ commandeering claim: whether the predicate facts asserted by the 20 states in the Florida lawsuit—that they entered into Medicaid with an understanding that Congress would not change its basic terms, and that they cannot withdraw from the program now because their residents rely on the existing scope of Medicaid and the states are financially incapable of funding the program on their own—are sufficient to demonstrate “coercion” as that term has been used by the Supreme Court in its spending power decisions (most critically, South Dakota v. Dole, 483 U.S. 203 (1987)).

For the moment, let’s bracket the question whether the concept of coercion has any intelligible purchase in this context. Many who have thought about the issue—including at least one United States Courts of Appeals, see Nevada v. Skinner, 884 F.2d 445 (CA9 1989)—have concluded that it does not. Again, states have no constitutional entitlement to federal funding. They are sophisticated, complex entities, not natural persons (who might be subject to coercive psychological pressures). And they possess an independent taxing power, which permits them (given the necessary political will) to raise additional revenue when necessary. All of these points undercut the notion that any strings that Congress might attach to federal funds offered to state governments—particularly when those strings concern the affected program itself, rather than some tangentially related aspect of state law—can ever be accurately characterized as compulsion. One can make a decent argument that, as a matter of law, states always have a choice to decline the funds.

But let’s set this question aside, as Dole indeed suggests there can be coercion in this context. Instead, let’s ask this question: What would be the consequences for constitutional law were the Supreme Court to uphold the states’ claim that the ACA’s Medicaid amendments are coercive? As I will endeavor to demonstrate, I believe the consequences would be significant—so significant that, even if the states might be correct in claiming that they have no practical choice but to accept the ACA’s new Medicaid requirements, the Supreme Court is exceedingly unlikely to rule in their favor.

Read more-->

<posted 7.22.10>

Commandeering and the ACA's Medicaid Amendments (part 2)

by Bradley Joondeph

As I discussed in an earlier post, the states’ most serious sovereignty-related (or Tenth Amendment) claim concerns the ACA’s amendments to Medicaid. Specifically, the states in the Florida lawsuit allege that, although a state’s participation is formally voluntary, they have no practical capacity to withdraw from the program. Thus, the ACA provisions that impose additional requirements on the states as a condition of receiving federal Medicaid dollars are coercive, and thus amount to an unconstitutional “commandeering” of the states.

On what basis do the states claim that they lack the practical capacity to avoid these requirements? The argument is laid out in paragraphs 65 through 68 of the complaint—preceded by the heading “The Act’s Requirements and Effects on the Plaintiff States Cannot Be Avoided”—which I reproduce here in full, given their significance:

Read More-->

<posted 7.21.10>

The four other lawsuits



Our focus here has been--and will generally continue to be--the two lawsuits filed by state attorneys general, Virginia v. Sebelius (filed by Virginia alone) and Florida v. HHS (filed by Florida and joined by 19 other states). These are, in some sense, the "leading" lawsuits challenging the constitutionality of the ACA, and they more directly raise the constitutional questions concerning federalism. But it is important to note that there are (at least) four other lawsuits that have been filed contending that the Act is unconstitutional. They are:

  • Thomas More Law Center v. Obama, 2:10-CV-1156 (E.D. Mich.)

  • Liberty University v. Geithner, 6:10-CV-00015 (W.D. Va.)

  • Association of Am. Physicians & Surgeons v. Sebelius, 1:10-CV-00499 (D.D.C.)

  • Kinder v. Geithner, 1:10-CV-00101 (E.D. Mo.)

With the exception of the last one listed, these are all actions filed by private parties. The Kinder case was filed by the Lieutenant Governor of Missouri (Peter Kinder), and thus arguably implicates the interests of state governments. But it is unclear whether, under Missouri law, the Lieutenant Governor has litigating authority in a matter like this. The state attorney general has moved to intervene.

We will post the official filings in these cases on the wiki site (see the green tab above) as soon as we can track them all down.

<posted 7.21.10>

N.Y. Times editorial on Kagan confirmation

by Bradley Joondeph

The New York Times today runs this editorial urging Senators on the Judiciary Committee to vote in favor of Elena Kagan's nomination to the Supreme Court. I mention this not for the opinion it expresses (which is rather predictable) but the subject matter on which it focuses: the breadth of Congress's commerce power and the constitutionality of section 1501 of the Affordable Care Act.

I find this noteworthy in two respects. First, who would have thought--even just two or three years ago--that the real "hot button" issue in a Supreme Court nomination would be the Commerce Clause? Not abortion, not gay rights, not the war on terrorism, but the subject students can barely stand as we slog through it in first-year constitutional law, the good ol' Commerce Clause.

Second, the editorial reflects the growing salience of the constitutionality of the ACA--and the breadth of Congress's enumerated powers more generally--as a political issue among the American public. Of course, many things could happen to defuse the matter before it ever reaches the Supreme Court. But at least at this point, the fight over the constitutionality of the ACA seems to have the markings of a sort of constitutional "moment" (to steal Bruce Ackerman's terminology): a point at which the American public becomes highly engaged on a significant issue of constitutional meaning, the resolution of which will have a lasting impact on our constitutional order.

Yet another reason that this whole matter, at least me, is terribly fascinating.

<posted 7.20.10>

A correction concerning the ACA's Medicaid coverage expansion

Yesterday I wrote a first post on the constitutionality of the ACA's amendments to Medicaid, and specifically whether the Act's new requirements unconstitutionally commandeer the states. As part of that post, I identified the requirement that states must provide a "benchmark" benefits package to all the newly eligible Medicaid beneficiaries (persons who would not have been eligible under the state's criteria as of the enactment of the ACA but who become eligible due to the coverage expansion to all persons under 65 years of age up to 133 percent of the federal poverty level).

Thanks to a helpful e-mail this morning from Mark Regan, Legal Director for the Disability Law Center of Alaska, I now see that my characterization was misleading (or just plain wrong). The ACA's requirement that states provide the "benchmark" benefits package (the minimum that must be offered in any package sold through a state exchange) is only an expansion in the sense that it forbids states from offering the newly eligible a largely hollowed-out, catastrophic-type benefits package. It is actually a reduction if we compare the "benchmark" package to what was minimally required under Medicaid prior to the ACA, and what must still be offered going forward to those persons who are eligible for Medicaid under the pre-ACA criteria (i.e., the non-newly eligible).

(My wife actually suggested this point to me a few days ago, but, as usual, I was not paying as careful attention as I should have.)

Sorry for any confusion.

<posted 7.20.10>

"Commandeering" and the ACA's Medicaid Amendments (part 1)

by Bradley Joondeph

In my view, the most serious sovereignty-related claim posed by the states in the Florida lawsuit concerns the ACA’s changes to the Medicaid program (Count 4 of the amended complaint). Medicaid is the joint federal-state spending program that provides health insurance for the indigent and the disabled, originally created in 1965 (now codified as title XIX of the Social Security Act).

States are not required to participate in Medicaid; indeed, Arizona did create its program until 1982. But if a state does participate—and every state now does—it must adhere to a variety of federal standards to qualify for the associated reimbursements from the federal government (reimbursements known as the “federal medical assistance percentage,” or FMAP). If a state fails to comply with the federal requirements, “the Secretary [of HHS] shall notify such State agency that further payments will not be made to the State (or, in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure), until the Secretary is satisfied that there will no longer be any such failure to comply.” 42 U.S.C. §1396c.

Read more-->

<posted on 7.19.10>

The Justiciability questions

by Bradley Joondeph

One issue that has consumed much of the space in the parties’ briefs in both of the lawsuits—but which has received comparatively little attention in the media and elsewhere—is whether either of the disputes are presently justiciable. That is, are these controversies, presented by these plaintiffs at this particular time, within the power of the federal courts to resolve?

There are several distinct justiciability questions raised by the two lawsuits, some constitutional and some statutory. And these questions may be especially important in the coming months, as they may be the only issues that the district courts reach in their rulings this fall. My aim in this post is simply to identify all the justiciability questions in play; I hope to analyze them in more detail in some future posts.

Read more -->

<posted on 7.19.10>

Soon-to-be Justice Kagan and her potential recusal

by Bradley Joondeph

The Senate Judiciary Committee is scheduled to vote tomorrow (July 20) on the nomination of Elena Kagan for Associate Justice of the Supreme Court. In connection with that vote, the seven Republicans on the committee last week sent Kagan this letter asking 13 questions about her involvement in the ACA litigation and the drafting of the ACA itself. The first paragraph of the letter states, “[w]e are concerned about the standard you would use to recuse yourself from litigation you participated in as Solicitor General. In particular, we are concerned about litigation that was clearly anticipated, but had not yet reached the point where your approval was sought for filings or pleadings.”

From all public appearances, Kagan does not seem to have played any role in the filings in the Virginia or Florida lawsuits. The government filed its substantive briefs in those cases well after President Obama had nominated her for the Court. And when asked by Senator Coburn at her confirmation hearing, Kagan stated that “[t]here was not” any time at which she had been asked to give her opinion on the constitutionality of the ACA. Nonetheless, it is certainly conceivable that the Solicitor General would be included in discussions within an administration about the constitutionality of pending legislation, particularly legislation of this significance. (It is worth noting, though, that this type of function is typically carried out by the Office of Legal Counsel within the Department of Justice, not the Office of the Solicitor General.)

In any event, it is clear that the Republicans are attempting to lay the groundwork for a Kagan recusal if and when the constitutionality of the ACA reaches the Supreme Court. (The precise circumstances in which a Justice should recuse are notoriously unclear, as the Scalia-Cheney-duck hunting episode from a few years ago demonstrated.)

Warren Richey wrote this article for the Christian Science Monitor about the letter.

UPDATE: Kagan has responded to the 13 questions in writing, though I have yet to locate her letter. The AP is running this story on it. The gist is that, because she "never served as counsel of record nor played any substantial role" in the Florida v. HHS, she "would consider recusal on a case-by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics."

<posted on 7.19.10>

Does the Obama administration believe 1501 imposes a "penalty" or a "tax"?

by Bradley Joondeph

That is the question that Robert Pear's article in yesterday's New York Times takes up. As Pear points out, President Obama (back in September 2009) vigorously defended ACA sec. 1501 as imposing a "penalty" for the failure to acquire health insurance -- no doubt to protect the Act from the charge that it was imposing a new tax on the middle class. But the Justice Department (as well as its amici) has defended the "minimum coverage provision," in both the Virginia and Florida lawsuits, as a valid exercise of Congress's taxing power (which derives from the General Welfare Clause of Article I, sec. 8, clause 1). As Jack Balkin has complained, the President “has not been honest with the American people about the nature of this bill. . . . This bill is a tax.” Balkin adds that, because it is a tax, it is "plainly constitutional."

Politically, the distinction between a penalty and a tax seems to matter. Legally, it is unclear that it does; the Supreme Court, at least since 1937, has typically only examined the form of the provision, and asked whether it raised any revenue at all. If so, it qualifies as a tax -- regardless of Congress's true purposes. But one of the fascinating questions in this litigation is whether the Supreme Court might be interested in revisiting this doctrinal point. Might five justices be willing to inquire into the intent of Congress in deciding whether a statutory provision constitutes a tax or a regulation for purposes of Article I? And if so, what would be the criteria for distinguishing the two?

Randy Barnett -- co-author of the CATO et al. amicus brief in the Virginia case and author of several pieces arguing that the individual mandate is unconstitutional -- discusses the significance of the article (and what it reveals about the true nature of ACA 1501) here at The Volokh Conspiracy.

<posted on 7.19.10>

State sovereignty and the insurance exchanges

by Bradley Joondeph

Another sovereignty-related claim raised by the 20 states in the Florida lawsuit concerns the ACA’s provisions concerning the creation of so-called health insurance “exchanges.” ACA §1311(b) states that “[e]ach state shall, not later than January 1, 2014, establish an American Health Benefit Exchange” that facilitates the purchase of health insurance for individuals and small businesses, and that meets various criteria established in the Act itself and by regulations promulgated by the Secretary of HHS. Under ACA §1321(c), if a state elects not to create such an exchange (or if its exchange fails to meet the federal standards), “the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.”

The states contend that these provisions are unconstitutional because they require state governments “to carry out insurance mandates and establish intrastate insurance programs for federal purposes under threat of removing or significantly curtailing their long-held regulatory authority as to intrastate insurance.” Amended complaint ¶88. The requirement to create an exchange “commandeer[s] the Plaintiff States and their employees as agents of the federal government’s regulatory scheme at the States’ own cost.” Id. And the threat of supplanting state law with a federal exchange within the state “would displace State authority over a substantial segment of intrastate insurance regulation (e.g., licensing and regulation of intrastate insurers, plans, quality ratings, coordination with Medicaid and other State programs, and marketing) that the States have always possessed under the police powers provided in the Constitution.” Id. ¶44. Consequently, the ACA’s exchange provisions “interfere[] in the Plaintiff States’ sovereignty in violation of the Ninth and Tenth Amendments and the constitutional principles of federalism and dual sovereignty on which this Nation was founded.” Id. ¶88.

Read more -->

The ACA's employer mandates and their incursion on state sovereignty

by Bradley Joondeph

One of the grounds on which the 20 states in the Florida lawsuit contend that the ACA unconstitutionally intrudes on the independent sovereignty of the states is by imposing several mandates and reporting requirements related to their provision of health insurance to their employees. (This is Count 6 in their amended complaint.)

To simplify a bit, ACA §1513 requires employers with at least 50 employees to offer their employees a minimum level of health insurance coverage, imposing tax assessments for the failure to meet this obligation. If employees choose instead to obtain coverage through a health insurance exchange, the employer is required to subsidize that coverage. ACA §1511 requires employers with at least 200 employees to automatically enroll all new full-time employees in a health insurance plan (if the employer offers one), though employees may opt out. And ACA §1514 requires most large employers to file a return with the IRS containing information about the health coverage they offer employees.

The states contend that these requirements—and the tax assessments that accompany non-compliance—will “interfere with their ability to perform governmental functions.” Amend. compl. ¶ 48. Because of the Act’s individual mandate, the ACA “effectively will force many more State employees into State insurance plans than the Plaintiff States now allow, at a significant added cost to the States.” Id. In addition, “the States will be subject to substantial penalties and taxes prescribed by the Act, at a cost of thousands of dollars per employee, for State employees who obtain subsidized insurance from an exchange instead of from a State plan, or if the State plan offers coverage that is either too little or too generous as determined by the federal government.” Id. Finally, the tax reporting requirements “also will burden the Plaintiff States’ ability to source goods and services as necessary to carry out governmental functions.” Id.

Read more -->


The states' due process claim

by Bradley Joondeph

One of the grounds on which the 20 states in the Florida lawsuit have challenged the individual insurance mandate (ACA §1501) is that it violates the Due Process Clause of the Fifth Amendment. (Count Two of the amended complaint.) Specifically, they argue that, “[b]y requiring and coercing [individuals] to obtain and maintain such healthcare coverage, the Act deprives them of their right to be free of unwarranted and unlawful federal government compulsion.” (Amend. compl. p.24.)

Few commentators sympathetic to the states’ lawsuit have defended this claim—and understandably so. The basic problem is that §1501 does not appear to infringe any right that the Supreme Court has previously recognized as “fundamental.” The liberty interest in not being compelled to purchase health insurance is not really analogous to the handful of unenumerated rights the Court has found to be fundamental, such as the right to control one’s reproduction, to control the rearing of one’s children, or even to refuse unwanted medical treatment. Instead, the interest is principally economic: the right not to be forced to purchase something (or instead pay a penalty on one’s tax return). As such, §1501 should only trigger deferential “rational basis” review; to pass constitutional muster, it must only be rationally related to a legitimate governmental interest.

Even the most ardent opponent of the individual mandate must concede that there is a rational basis for §1501, at least as the Supreme Court has historically applied that standard. There is a solid empirical basis for believing that requiring all persons to acquire health insurance (1) mitigates the problem of adverse selection in the private health insurance market, (2) increases the likelihood that Americans will obtain their health care in more cost efficient settings, and (3) decreases the likelihood that people will suffer financial catastrophes as a result of unexpected medical conditions. Moreover, even if these empirical claims are contestable or misguided, it is nearly impossible to say that Congress lacked a rational basis for believing them.

Further, scores of state, local, and federal laws currently impose similar “compulsions,” many of which constitute more significant intrusions on liberty than §1501. Various levels of American government presently require people, among other things, to be vaccinated, to attend primary and secondary schools (or their equivalent), to register for the draft, to file tax returns, and to purchase automobile insurance. The idea that all these laws are unconstitutional lacks much currency in mainstream legal thought.

Finally, two of the justices whose votes almost certainly would be necessary to invalidate §1501—Scalia and Thomas—generally do not subscribe to the notion that the Due Process Clause protects unenumerated, substantive rights (though they have stomached the idea in particular contexts as a matter of stare decisis). They seem highly unlikely to extend the reach of substantive due process in a way that contravenes controlling precedent.

In short, the states’ claim that §1501 violates the Due Process Clause appears to be a nonstarter.