Monthly Archives: March 2012

Legal Fiction: Chapter 2

A job is a funny thing. You probably don’t like yours but does that matter? You gotta have one, right? Harry Cohen understood this. He was a senior associate at the firm Chelsea Hale had worked in and he understood just how frustrating it can be to play a game you don’t want to play. Yet it wasn’t until Chelsea Hale’s death that he decided to stop.

The turning point for him started on the morning after. He had been putting in long hours on an upcoming deal and had heard nothing of her passing until he walked into his office. The first clue was his secretary Ann, who wasn’t wearing her usual smile but rather, a look of restrained urgency. “Did you hear?!” she asked softly. It was clear she was trying to sound somber but the gossip in her couldn’t resist a conversation. Harry had almost walked right by her; this caused him to stop in his place. “Hear? Hear what?” he quizzed.

“Ms. Hale … she took her own life yesterday.”


“Yea. Yesterday. She jumped off the Brooks Mauer Fields building, over at 50th St. Almost fell on some tourists, they said.”

Harry was immediately skeptical. “They said? Who’s they?”

“The news. I’m surprised you didn’t see it anywhere. It was on all the stations last night.”

“I was buried work last night, reviewing those merger filings. Didn’t even get out of my office until 2 A.M.” Harry groaned.

He was tempted to stick around and find out more but he had a policy against lingering in the hall too long lest one of the partners see him and try to throw more work on him. “I’m gonna get settled in,” he added, pointing to his office, “but I want to hear more about this.” Ann knew exactly what that meant. What it did not mean was to follow him into his office. The young associates and assistants had a system for looking busy and avoiding the stern reprimands of the partners—a system known as GChat. This was where most of the office gossip was dished around.

Once he settled in, Harry started getting up to date on all the buzz. Yet, the word on Chelsea’s death had one feature about it that stuck out like a sore thumb: it was inconsistent. Details varied wildly from person to person. Such is gossip, right? But even the news accounts didn’t make sense to Harry. What was she doing at Brooks Mauer? As far as Harry knew, she wasn’t working on any case with them. How would anyone other than an employee get access to their balcony? He’d been to their buildings a few times for depositions and remembered that the floors above 50 required a keycard to access. Since the balcony was quite a ways above the 50th floor, she couldn’t have gotten up their without some help.

More to the point, why would she take her own life and in that way? Harry didn’t work all that much with Chelsea but she never showed any signs of depression. To the contrary, she was a fighter, a self-proclaimed “confident woman” and he couldn’t imagine her doing something she’d once called “weak” in a lunch meeting with some associates.

Nothing added up to Harry and he found himself growing increasingly frustrated with other office workers’ willingness to accept what they were hearing as true. Maybe this was it. Maybe this was the sign he needed to go from white shoe to gum shoe. In college, Harry was torn between pursuing a career in journalism or going to law school. After his friend was mugged in an alley, he made up his mind. He was gonna go off and become a prosecutor. Better late than never, right? He was probably too late for journalism but working as a prosecutor wasn’t outside his reach. Maybe this could be an ‘audition’ of sorts. He could discover the truth behind Chelsea’s death and show his talents for solving crime. The only thing was, he’d have to commit to this right here and right now or it’d never happen. Inertia is a powerful force—especially when accompanied by a large paycheck. Before he could talk himself out of it, he walked into his boss’ office.

There was a moment of silence then Harry made his declaration. “Sir, this is my two weeks notice. I’m quitting.”

Some Final Thoughts on Oral Arguments in the Health Care Cases

I’ve had a chance to listen to the entirety of oral arguments in the health care cases now. As always, apologies in advance for typos.


There were some telling discussions during the Medicaid arguments. For example, we now have quite clear proof that Scalia will vote to invalidate the individual mandate. During an exchange with SG Verrilli, the SG suggested that “political constraint” (i.e. accountability to the voters) would serve as a check on an unreasonable decision to pull Medicaid funding to states. Scalia had this retort: “I would have thought there was a serious political . . . constraint on the individual mandate, too, but that didn’t work.” Read: “I’d hoped that the ACA wouldn’t pass.”

I was surprised at how spirited the conservatives were regarding the constitutionality of the Medicaid provisions. The key argument against them was that funding was coercive since a state refusing to comply with federal demands could have all of its Medicaid funding revoked. There was a lengthy argument between Justice Breyer and the conservatives regarding whether such a revocation could occur if it were “unreasonable” to do so. Here, I think Breyer’s expertise in administrative law showed up. He’s well-versed in what administrative agencies can do and the general requirement of reasonableness…a requirement that would cut against revoking funding in a coercive way. I reckon what surprised me about the conservatives’ attack on this provision of the ACA is that their arguments seemed reminiscent of what you’d expect a more liberal person to say. They argued that states don’t really have a choice about following federal requirements due to the context of the funding. This is a very environment or “external” type of argument that requires us to assume free-will takes a backseat to the context and outside factors. The kind of argument you don’t often hear conservatives making.


I also have some overall comments on how this whole series of arguments has been covered. I’ve been annoyed with both conservative and liberal thinkers for their smugness. The broccoli argument is deservedly mocked as is the burial one but the ultimate issue of inactivity / activity is not nearly as ‘insignificant’ as some argue. Nor is it appropriate to respond as the Republican National Committee has (see here) and misconstrue the quality of SG Verrilli’s arguments. Whether you agree or disagree with his position, he did rather well in total. I do agree that his ability to articulate a limiting principle was weak but that is no excuse for doctoring audio or criticizing him.

Here is the truth about what is going on. The supporters of the ACA see cases like Wickard v. Filburn and Gonzales v. Raich as a clear grant of power to regulate health care. They’re not entirely right as I see it. I’ve yet to find a case that really tackles the activity/inactivity distinction head on. Stone compares refusing to hire someone due to race (a violation of the Civil Rights Act of 1964) to refusing to enroll in health insurance. His initial point about the insignificance of calling conduct activity or inactivity is logical enough in the abstract. But of course, telling an employer not to discriminate based on race isn’t really comparable to telling an employer he must maintain a diverse workplace. It comes down to what was labeled “point-of-sale” during the arguments this week. When a person uses emergency room services, they’ve decided to enter commerce. Similarly, when a person applies for a job, the employer is forced to make a hiring decision. That’s the point in time where the “point of sale” occurs. I don’t mean to get too involved with this except to highlight that it’s harder than some suggest to draw perfect correlations between the individual mandate and other laws deemed valid under the Commerce Clause.

There are plenty of similar or close situations but I can find none that quite match what’s going on here. Indeed, the SG’s argument about a limiting principle relied on the uniqueness of the health care system. So, we can play with activity/inactivity distinctions—or lack thereof—all day long and this just goes to show that there isn’t an obvious answer to the constitutional question. If there were, we wouldn’t be able to so thoroughly debate the matter.

This difficulty I discuss also illustrates why the conservative opponents of the ACA have erred in assuming something unprecedented has occurred that violates the Commerce Clause. I have trouble seeing how telling someone they must buy health care is any more troublesome than telling a farmer he can’t grow a little extra wheat for feeding his family. See Wickard. I personally find both especially concerning because they exercise a heavy hand over what we do with our own lives. The justification for regulating both is a sort of utilitarian principle (the needs of the many must prevail over the desires of the individual) based in the empirically-observed aggregate effects that both growing wheat and refusing to buy health care have. Indeed, this utilitarian approach is not different in a philosophical sense from implementing traffic regulations or taxes. I’d prefer to drive as fast as I want and I’d prefer not to surrender my hard-earned money but I have to submit to regulation in both contexts for the good of society. The purest of libertarians take issue with even these regulations but most people will tolerate some utilitarian regulation if the risk of society harm is great or the infringement on the individual is minor. The ACA is a precarious position because many people find the individual infringement significant (economically and intangibly) while also finding the risk of harm (cost increases for others via market shifting) inconsequential. All of that is a long-winded way of saying that this regulation may well be unwanted but is not all that different in degree from what the Court has previously allowed.


I’d by no means bet the farm on these predictions. It’s really tough to figure out how Kennedy may go on this. I expect one of two possibilities. The first is that he votes to uphold the mandate but includes some strong language about how the holding is narrow, how Congress has no power to force people into commerce, and perhaps even some language that reads limitations into the ACA. Kennedy has not been shy from getting creative before. As I argued here, I think Kennedy had a lot to do with the new due process considerations announced in Turner v. Rogers…principles that neither party argued for in their briefs or during oral arguments. Similarly, his approach in cases like Boumediene suggests to me that he’s ready to come up with a creative solution that limits the ACA’s reach while upholding it.

Of course, the second option is that he just strikes down the mandate. And this wouldn’t surprise me. Kennedy seemed pretty skeptical about the level of intrusion on individual liberty during oral arguments—a virtue he has repeatedly show he’ll defend. When individual liberty is threatened, we usually see Kennedy standing behind it, which is what probably caused him to split from the other conservatives in the several Gitmo cases. I think that if Kennedy votes to strike down the individual mandate, the rest of the law including the Medicaid provisions will remain intact.

That’s my prediction on the likely outcome for whatever it’s worth. We’ll get to see how wrong or right I am by the end of June.

-Zachary Cloud

Some Quick Reactions to the Severability Argument

I’ve only had a chance to listen to the oral arguments regarding the potential severability of the individual mandate from the rest of the Affordable Care Act. Here’s what I’m left wondering:

• Does it potentially hurt the challengers that they’re pushing for a total invalidation…that is, for the Court to strike down the Act in its entirety? Here’s what I’m getting at: some justices might be reluctant to “throw the baby out with the bathwater” so to speak. If you ask them to take an all or nothing approach they may uphold the entirety of the law. I didn’t get any especially strong indications from Kennedy that this was how he was thinking through the problem but I sort of think that this all-or-nothing approach Paul Clement advances could be detrimental to his position.

• That said, I found the government’s position untenable. Justice Scalia somewhat exaggerated the point but his basic contention has some force: why should the Court have to or even be allowed to go through all 2000+ pages of the Act and systematically determine what stays and what goes? Either Kagan or Sotomayor—I can’t remember which—correctly points out that nothing near that level of work would be required but the philosophical point has at least some force. At the point that the Court has to do more section-by-section analysis it can start to re-write the statute in a sense. And certainly, it violates the basic principle that the Court is only supposed to consider the questions that the parties to the suit present. Thus, it’s not within the Court’s proper place to examine the constitutionality of a section no side argues is unconstitutional.

• There was certainly a feeling that severability might properly turn on how central the individual mandate was to the legislation. Basically, if it is the main portion then all of the law has to go but if it is only a portion then the rest of the law can remain intact. An interesting compare/contrast with the Court’s decision in Booker occurred. Booker is a case that struck down aspects of mandatory sentencing under federal sentencing law, making those guidelines discretionary instead (I’m oversimplifying here for the sake of concision).

• I’ve found it interesting to observe how the tone of arguments ahs become more ‘hostile’ or ‘adversarial’ throughout the week. The first day was generally cordial like most oral arguments are. At this point, counsel for both sides have talked over judges and, in the small part of the Medacaid argument I’ve listened to, several of the judges had difficulty hiding their disdain for peitioner’s positions. When Kagan asked Clement about the federal government giving states money, she used a hypothetical where she offered Clement a job for $10 million and asked if he’d really turn that down. When he responded, “it’d depend on where the money was coming from” she had essentially this reaction: really?? You’re actually gonna try to say that? Indeed, her incredulity was palpable and illustrative of the way arguments have grown more contemptuous throughout the week.

That’s pretty much it for now. If I get a chance to listen to the rest of the Medacaid arguments soon, I may post some more thoughts. In a day or two, I’ll probably post some ‘forma’ predictions about what outcome I expect. For now, this will have to do.

-Zachary Cloud

Oral Arguments from Day 3 of the Health Care Cases

It’s the last day of oral arguments regarding the constitutionality of the ACA. Both the arguments regarding severability and Medicaid are now available: here and here. I’ll be listening to them during my commute home this evening and reactions will follow.


-Zachary Cloud

Some Quick Reactions to Day 2 Arguments in the Health Care Cases

Again, I’m jotting down some of my initial reactions to the second day of oral arguments in the ACA cases. Apologies in advance for typos! Here’s what struck me:

• By and large, no new arguments popped up today. Not that we’d really expect that to happen but I was a little surprised at how everything we heard today has been discussed at length (some might say, ad nauseum) already. Some of that discussion occurred in the lower court cases and some of it outside of the courtoom during press events.

• Kennedy is definitely the key vote on this. I think most Supreme Court followers felt that way going into this … so again, no real surprise. Nevertheless, today made it obvious that the so-called ‘liberal justices’ are going to vote to uphold the law and big federalist justices like Scalia and Thomas will overturn it as being too intrusive on State / Individual rights.

• And on the importance of Kennedy, I think the individual mandate will be found unconstitutional unless he can come up with a  better limiting principle than SG Verrilli has proposed. The SG failed—at least for me—to explain why upholding the mandate wouldn’t set a precedent for letting Congress force individuals into the stream of commerce. The Commerce Clause jurisprudence has never gone that far and I don’t think Kennedy will stand for such a result. He might be able to come up with a legitimate principle that explains why Congress’ power isn’t so broad with a valid individual mandate, vote to uphold the mandate bringing the four liberal justices along, then assign himself the opinion OR he’ll fail, find the scope of Congress power under a valid ACA too broad, and vote to strike it down.

• I was a little surprised at how audibly (I say audibly since I have only heard the audio and did not watch the arguments in person) shaken SG Verrilli was at the beginning of arguments. You could hear his nervousness this morning. Of course, he warmed right up and quickly shook his nerves. Still, such nervousness says something about the epic importance of this case…when a man with as much experience arguing before the Court as Verrilli has gets noticeably shaken up.

• Both the SG and Paul Clement did really well. They hit all their marks. Paul Clement continues to amaze with his appellate advocacy skills. He probably rivals the skills that Chief Justice Roberts used to show when he was an SG arguing before the Court.

• I was actually a little surprised at the liberal justices’ questions. I think they generally could have made strong points for their position. After all, cases like Raich are really strongly in favor of the government here. I’ll note, however, that I do find this case to be distinguishable from pretty much every other commerce clause case we’ve seen so I don’t know that Raich makes this a closed issue or has a particularly strong ‘controlling’ effect on how this case should come out. But, long story short, I think the liberal justices could have more clearly illustrated how stacked the caselaw at least seems to be against the petitioners.

• I’m interested now to hear how the severability arguments tomorrow go. I’m pretty uninterested in the challenges to the Medicaid changes.

That’s what’s on my mind right now. More thoughts after tomorrow’s arguments are up. And of course, SCOTUSblog continues to have excellent coverage of these  cases.

-Zachary Cloud

Oral Arguments Audio from Day 2 of the Health Care Cases

Full audio from day 2 of oral arguments on the health care cases is here. Today’s argument concerns the heart of the cases: is the individual mandate contrary to the Commerce Clause. My reactions once I’ve had a chance to listen to the arguments in their entirety. A SCOTUSblog recap / initial reaction is here.

-Zachary Cloud

Quick Reactions to Day 1 of Health Care Oral Arguments

I’m writing this as the first in a series of a few posts detailing my reactions to oral arguments in the Affordable Care Act cases. I am doing this mostly for myself as a way to preserve present observations for future posterity but please come along for the ride if you want!

I don’t have many from today’s session. We only saw 1 hour of argument regarding whether the Tax Anti-Injunction Act bars consideration of the Act until a ‘tax’ is collected for non-compliance.

Some quick thoughts:

• Nothing short of irony that the SG has to argue no tax for T-AIA purposes then turn around argue, ‘yes, tax’ for individual mandate purposes.

• A really fascinating discussion developed during the SG’s time about whether finding that the T-AIA isn’t a jurisdictional bar would allow federal courts to fashion equitable doctrines that would harm the US down the road in other tax-collection situations. Admittedly, it may be something that may only interest those who love Fed Courts issues.

• Justices all seem pretty eager to get to the merits.

• Bob Long did a yeoman’s job in his role as appointed amicus.

• Kennedy may be a crucial vote on the mandate provisions. And I’m genuinely not sure how he’ll come out on this.

Next we get to the juicy stuff that most people will be interested in: is the individual mandate a violation of the Commerce Clause? Before Raich I would have said ‘yes’ but now it’s a hard sell indeed. Not impossible to sell…just tough to sell. I’ll be back with thoughts on day 2 arguments after I’ve listened to them!

Full audio of oral arguments from day 1 here.

SCOTUSblog summarization here.

-Zachary Cloud