Important Points Won Even as ACA Case Was Lost, Paul Clement Says

Paul Clement’s arguments did not carry the day when it came to the outcome a year ago of the historic United States Supreme Court decision on the constitutionality of the individual mandate in the federal Affordable Care Act, popularly known as Obamacare. But his arguments were supported by a majority of the justices on important points that will have an impact for years to come in Congress and in the judicial system, Clement said in delivering the Hallows Lecture 2013 in the Appellate Courtroom of Marquette University Law School’s Eckstein Hall this week.

Clement, formerly solicitor general of the United States, has argued 65 cases before the Supreme Court. He was the lead attorney in presenting arguments to the Court on behalf of 26 states that challenged the health care law. The Court heard a remarkable six hours of arguments focused on several major aspects of the challenge.

“The challenge for the challengers was to run the table to the tune of going 15 for 15” on legal points involved in the case, Clement said. “The good news is the challengers went 14 for 15. The bad news, from the perspective of my clients, is that 14 out 15 isn’t good enough. . . . Getting a really satisfying opinion from four justices still counts as a loss.”

The question at the heart of the case was whether there would continue to be a meaningful limit on the power of the federal government to impose laws such as the Affordable Care Act on the states, Clement said. He said, “I do think in some respects, the single most important takeaway from the decision was there were not five votes to say that there really is no meaningful judicial review of federalism constraints on Congress. There are constraints—again, the power is very substantial, very broad in the wake of the New Deal precedents of the Court, but it remains a limited power.”

Discussing the “spending powers” Congress can call on in requiring states to go along with specific requirements if they want to receive federal money, Clement said, “If you can basically, without limit, put conditions on the states that, if you want this bucket of federal funds, you must agree to the following conditions, then there is no practical limit on federalism at all. The Court, by saying there is a step that Congress can go that is too far, has breathed some life into federalism and the spending power.”

Clement said it was important that, in the eyes of Chief Justice John Roberts and a majority of justices, the “individual mandate” that requires people to get health insurance could not be constitutionally grounded in the commerce power or the “necessary and proper” power in the United States Constitution. Only Roberts’s conclusion that the mandate could be upheld as a tax on those who don’t get health insurance saved the law from being overturned. The tax argument received little attention in front of the court or in the briefs presented to the court, Clement said.

Clement said, “The statute was reformulated as a taxing power statute. . . . How remarkable is that? The Supreme Court had six hours of argument on this case and the taxing power argument got, maybe, generously, three minutes of the six hours. . . .”

Clement said he would have loved to argue why the mandate shouldn’t be upheld as a tax, but no one expected that to be the pivotal point in the Chief Justice’s opinion. Clement said if he had told the challengers ahead of time that he thought the case would turn on the taxing power and it should be central to their arguments before the Court, “I would have been fired.”

But ruling that the individual mandate was constitutional only as a taxing issue will have long-term impact, Clement said. “For ‘small p’ political reasons, I rather doubt we’re going to have a lot of new individual mandates,” he said. “Whatever you think about the constitutional issue, I don’t think that politically it played so well in the long run.” Passing something labeled a new tax is always going to be difficult in Congress, he said.

Clement said people have asked if he thought the decision was “a constitutional moment.” His view is that it was “a constitutional moment averted.” If a majority of the Court had held that the law, as written, was constitutional under the commerce or “necessary and proper” provisions, “I think that would have really been the constitutional moment and the momentous holding of the Court” that there is no limit on congressional power over the states when it comes laws such as this one.

Video of the Clement lecture can be viewed by clicking here.





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