Angles on the ACA and the Commerce Clause, Round 2

Just yesterday, the D.C. Circuit released its decision upholding the Patient Protection and Affordable Care Act (ACA) over a facial Commerce Clause challenge.

My post last week  highlighted several noteworthy perspectives on the Commerce Clause culled from amicus briefs filed in the ACA litigation, and as I read the opinion, I wondered to what extent friend-of-the-court submissions influence courts in practice.

To recap last week’s post, several states filed a brief outlining how Congress’s Commerce Clause authority interacts with states’ powers and responsibilities. The National Women’s Law Center and others frame the ACA as a civil rights law, and emphasize that, since Heart of Atlanta Motel v. United States, the Court has long affirmed Congress’s power to regulate interstate commerce to address discrimination.  And the American Association of People with Disabilities brief argued that the ACA relates to interstate commerce because it prevents the inefficiencies of “job lock”  — when employees remain in the same position because they fear being left uninsured.

The Commerce Clause analysis in the D.C. Circuit’s opinion is quite straightforward.  Judge Silberman analogizes to the seminal Commerce Clause case Wickard v. Filburn, which held that “even growing wheat for personal consumption, not for sale in any market, could affect the national price, and therefore was within Congress’s commerce power.”  Although the opinion does, for example, touch on the interaction between the Commerce Clause power and state’s powers, and it does briefly mention Heart of Atlanta Motel, there’s little indication that amici’s perspectives on the Commerce Clause played a role in the outcome.

Academics have long been interested in whether amicus briefs actually influence judges.  And indeed, a survey a few years ago by Linda Sandstrom Simard showed that federal judges “find amic[i] curiae helpful in offering new legal arguments that are absent from the parties’ briefs” and also found “broad support for amic[i] curiae who focus the court’s attention on matters that impact a direct interest that is likely to be materially impacted by the case.”

Wickard is a 1942 case — a sharp contrast to “new legal arguments that are absent from the parties’ briefs.”  Still, it is possible that the amicus briefs’ discussion of various aspects of the Commerce Clause issue did make a contribution in the courts of appeal — and they may have a further impact when the Supreme Court finally decides the ACA’s constitutionality.