Judge Henry Hudson’s recent decision striking down the central provision of the health insurance reform statute has gotten (pardon the pun) nearly universal coverage in the legal blogosphere. But I was struck by a section of the opinion that has received little notice: the passage early in his opinion in which Judge Hudson rejects the federal government’s argument that Virginia’s constitutional argument should fail because it is a “facial challenge.”
Virginia’s challenge to the mandatory coverage provision is facial because it alleges that the provision is unconstitutional on its face—that it is invalid as it is written, without regard to any particular circumstances in which it might be applied. (That makes sense, since the provision hasn’t yet gone into effect.) Accordingly, in defending the lawsuit, the United States cited a case that every government loves to cite in constitutional cases: United States v. Salerno. That 1987 case, written by Chief Justice Rehnquist, stated that a facial challenge cannot succeed unless the challenger can “establish that no set of circumstances exists under which the Act would be valid.” In the health care litigation, the United States has argued that this standard isn’t met because the plaintiffs can’t show there isn’t some person somewhere for whom the decision not to buy health insurance counts as an active economic choice regulable by Congress under the Interstate Commerce Clause.
This argument was at least worth a try. The Supreme Court has cited either Salerno or the strong presumption against facial challenges in cases involving abortion, voting rights, campaign finance regulation, and many other constitutional issues. Still, as Judge Hudson points out, the Court hasn’t consistently applied or unanimously embraced the Salerno standard in the 20-plus years it’s been on the books.
More important, Salerno has generally been a no-show in cases involving the boundaries of Congress’s regulatory authority. For instance, in the landmark 1995 case that struck down the Gun-Free School Zones Act and revived the Commerce Clause as a justiciable limit on federal power, the Court seemed totally uninterested in the possibility that a particular gun in a particular school zone might substantially affect interstate commerce. And in its 2005 decision upholding federal regulation of the medical use of marijuana under the Controlled Substances Act (CSA), the Court went so far as to reject a non-facial Commerce Clause challenge, essentially on the theory that the CSA as a whole was facially valid.
Virginia’s challenge to the health reform law is, of course, all about limits on federal power. And Judge Hudson concludes that “[b]y their very nature, almost all constitutional challenges to specific exercises of enumerated powers, particularly the Commerce Clause, are facial.” That may be right, but it’s worth noting that the Supreme Court has never come out and said it. (The best authority Judge Hudson could come up with was a dissenting opinion by Justice Scalia.) Moreover, in a couple of recent cases concerning congressional power—the power to prohibit bribery by recipients of federal funds and the power to ensure courtroom access for the disabled—the Court has decided not to follow the all-or-nothing, facial approach. (These cases may explain the wiggle-word “almost” in Judge Hudson’s conclusion.)
Virginia’s lawsuit, or another one like it, will eventually make it to the Supreme Court, and I doubt the federal government’s Salerno argument will get anywhere. In part, this is because the Salerno argument—in short, “don’t judge the constitutionality of the statute all at once”—is at odds with the government’s best argument on the merits, namely that the mandatory coverage provision is supported by the Necessary and Proper Clause because it is essential to the rest of the statute’s regulation of commerce—in short, “the statute must stand as one seamless whole.” (Or fall as a whole; the government was fortunate that Judge Hudson decided to “sever” the mandatory coverage provision and let the rest of the law stand.)
In part, though, the Salerno argument fails because, intuitively, constitutional questions involving the presence or absence of government power are best resolved as a facial matter. As I’ve written elsewhere, this intuition probably has something to do with the idea that constitutions authorize governments to act for certain reasons or purposes and not for others; the government’s reasons for acting usually don’t depend on the facts of particular applications. If the United States can convince the Fourth Circuit or the Supreme Court that Congress’s reasons for requiring people to buy health insurance were inextricably bound up with a purpose to regulate interstate commerce, then health insurance reform will stand and Judge Hudson’s opinion will fall.