I have not had time to read the entirety of today’s 4th Circuit opinion finding that the court lacks subject matter jurisdiction to hear the challenged to the ACA because it is a tax, and the Anti-Injunction Act bars the suit, but I was curious to read Judge Davis’s dissent that reached the merits, and found the ACA within Congress’s powers.
This section on the interaction between federalism and liberty is of some interest.
Appellants claim that their liberty concern springs from the principles of federalism rather than black-letter Commerce Clause law. Though these principles serve to protect state sovereignty and the resulting division of power helps to secure our liberty, federalism is not an independent font of individual rights.
As Justice Kennedy explained in his concurrence in Lopez, “it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one,” as power could be split between state and federal governments even before each government’s powers were further separated among legislative, executive, and judicial departments. 514 U.S. at 576. Thus, “[s]tate sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U.S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting)). Federalism “enhance[s]” our liberty by disaggregating power; it helps to secure all our individual rights, but it does not create new ones. The Supreme Court’s recent decision in Bond v. United States, which granted an individual criminal defendant standing to challenge a federal statute on the grounds that it usurped powers reserved to the states and which discussed at length the ways in which federalism protects individual liberty, is not to the contrary. 564 U.S. —, —, 131 S. Ct. 2355, 2364 (2011). Appellants provide no support for their suggestion that some novel, heretofore unknown, individual right can spring from the principles of federalism.
Oh, here Judge Davis is trying to narrow the holding of Bond. The old “no support for their suggestion” does not equal “their argument is wrong.”
Federalism was properly invoked in Lopez and Morrison, where, to police the division of authority between state and federal governments, the Court struck down federal regulation of noneconomic activity within “areas such as criminal law enforcement or education where States historically have been sovereign.” Lopez, 514 U.S. at 564; see Morrison, 529 U.S. at 599. Lopez and Morrison’s concern about the loss of state authority within areas traditionally reserved to the states implicates the division of power between state and federal governments and thus goes to the very core of federalism. Appellants’ individual liberty concerns do not. Appellants suggest that allowing the Act to touch all U.S. residents, whether or not they have voluntarily entered a regulated domain, “threatens . . . the bedrock concept of . . . individual freedom.” Appellants’ Br. 11-12. Federalism does not speak to this issue.
Nor does any recognized individual right. Appellants’ rhetoric sometimes suggests a generalized right to be left alone; but outside of a limited right to privacy concerning “the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy,” including those “relating to marriage, procreation, contraception, family relationships, child rearing, and education,” Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 851 (1992), no such right exists. And any such right springing from substantive due process would bind the states under the Fourteenth Amendment as well as the federal government under the Fifth, placing universal regulation outside the reach of any government.
Moreover, an extensive body of federal laws, many passed pursuant to the Commerce Clause, targets all U.S. residents: federal criminal law. Indeed, Raich itself concerned the Controlled Substances Act and the noncommercial production and consumption of marijuana; nowhere in Raich did the Court intimate concern that the federal government was regulating the drug use of “everyone . . . just for being alive and residing in the United States.” Bondi, — F. Supp. 2d. at —, 2011 WL 285683, at *20. Though penalties do not attach until someone has violated the statute, the same is true of the Act’s regulation. Of course, appellants suggest that compelling action is less legitimate under the Commerce Clause than prohibiting action. I take up that question next.
I said it before, and I’ll say it again. This, and not commerce, is the crux of ACA litigation.