McDonald v. Chicago Redux

With the recent Sixth Circuit decision concerning the Affordable Care Act and the resurface of debates held after each decision comes down, I have decided to join in the navel gazing and prognostication by predicting the eventual Supreme Court outcome of the case. For those in the know, I obviously think that the case will end in a controversial 5-4 decision with the standard ideological split much like McDonald v. Chicago did. However, I want to take my analysis a step further, by looking at the various factions who want to overturn the act or limit the Commerce Clause, and guessing the contours of final decision.

First, we look at the major players in this drama as it unfolds:

Alan Gura, who represented the petitioners in McDonald v. Chicago, attempted a novel approach to incorporation by reviving the long dead Privileges or Immunities Clause. In contrast for the ACA cases, Randy Barnett is attempting to press for a novel theory of an activity/inactivity distinction in the Commerce Clause. Both Alan Gura and Randy Barnett are attempting to invigorate Constitutional restrictions by not merely introducing an argument that wins the present case, but also by moving ideas/legal theory into the mainstream.

In an allied contrast, some other participants just want the law overturned, and are not particularly wedded to a certain theory, as long as one wins the current case. In McDonald v. Chicago, this group was represented by the National Rifle Association and Paul Clement. While there was a disagreement about methods and the safety of using certain arguments, the main concern was a particular policy outcome of ensuring gun rights. In the ACA litigations, this group is represented by Ken Cuchinelli, Attorney General of Virginia, whose ultimate goal is to stop ACA. Although things are much better between Barnett and Cuchinelli than between Gura and the NRA, I would not be surprised if things went down the same road if Cuchinelli feels that Barnett’s theory harms the chance of victory.

Of course, there are always some spoilers in every crowd. In McDonald v. Chicago, those spoilers were Ken Blackwell and Ken Klukowski, who were adamantly opposed to idea of reviving the Privileges or Immunities Clause as they were afraid that it would open a Pandora’s Box of new rights and threaten the Constitutional status quo. In the ACA situation, those role is reprised by Orin Kerr, who feels that there is no basis for Barnett’s theory in the Constitution, and that the Act should stand. Of course, it seemed that Professor Kerr and Professor Barnett had practice back during McDonald v. Chicago arguing with each other. At this point in the ACA situation, the two professors are already going head to head before there is a Supreme Court case.

So noting these similarities is just a meaningless exercise in navel gazing, unless they have a substantial impact on the eventual Supreme Court case. One potential remaining question in this situation is which cases will have cert granted, which will in large part determine who gets to argue the case in front of the Justices. If past history is any indication, this could have a large impact on how well the various coalitions opposing the bill operate. Even if relations sour however, the final outcome will be a 5-4 outcome, with 4 Justices (probably lead by Scalia) will vote to overturn ACA, but not use the activity/inactivity distinction, and a concurring justice (probably Thomas) using the distinction to reach the overturning outcome. The four liberal justices will likely write a angry, scathing dissent (Breyer’s pretty good at those). So the final outcome will be a largely disappointing 4-1-4 split with very little guidance for future cases. This is the McDonald outcome, and since this situation is looking like McDonald v. Chicago Redux, the ACA lawsuits will end up in the same position.
    • troll_dc2
    • July 1st, 2011

    Who can say what will happen, but I wonder whether Judge Sutton’s explanation as to why the ACA’s duty to buy and maintain insurance is constitutional might persuade even some of the so-called conservative justices to uphold the statute.

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