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Obamacare on Trial: The Individual Mandate

7:18 PM, Mar 27, 2012 • By ADAM J. WHITE
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Yesterday, we endured an esoteric debate over a jurisdictional statute that practically no one expects to actually affect the Supreme Court's review of Obamacare. Today, by contrast, was the argument we've all been waiting for: the challenge to the constitutional merits of Obamacare's individual mandate.

There already has been a tidal wave of reporting, commentary, and predictions. (Among straight news reporting, I recommend SCOTUSblog's Lyle Denniston, National Law Journal's Marcia Coyle, and the Washington Post's Robert Barnes.) But there are a few points to add or amplify:

The most important moment in the entire argument occurred near the end, as Justice Anthony Kennedy—widely expected to be the deciding vote—succinctly summarized the choice that he will have to make:

the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets—stipulate two markets—the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

That's my concern in the case.

Kennedy is looking at the government's primary argument—whether the individual mandate is a "necessary and proper" adjunct to Obamacare's broader regulatory scheme—and looking for a "limiting principle," a rule that would prevent this case from handing the government a blank check to impose new mandates. At the same time, he is at least open to the idea that "health care" or "health insurance"—the parties and justices fought relentlessly over the proper market definition—is itself sufficiently unique as to limit the case to health care's (or health insurance's) particular facts.

Kennedy stressed these concerns near the outset of today argument, too, while questioning Solicitor General Donald Verrilli.  Raising a point that the plaintiffs stressed throughout the litigation (and which THE WEEKLY STANDARD noted last week), Obamacare's individual mandate is an unprecedented new regulatory innovation, and such an innovation raises serious prudential questions: 

Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Astonishingly, the solicitor general did not have a well-rehearsed, thorough, or convincing response to this point. Later in the argument, Justice Samuel Alito gave him another bite at the apple, asking the solicitor general to "express your limiting principle as succinctly as you possible can." By my quick count, the solicitor general's answer rambled on for roughly 250 words—a deflating moment for Obamacare's proponents.

But the other critical moment in Kennedy's thinking came slightly earlier in the grilling of the solicitor general. Noting that President Obama and the Congress almost certainly could achieve the same objectives through a straightforward tax or a national health service, he looked to the president's and Congress's actual handiwork and observed that the government "ought to be honest about the power that it's using and use the correct power." This is a very worrisome aside, at least from the government's perspective. Kennedy made clear his concerns about the individual mandate's unprecedented nature; he won't be any more inclined to endorse this innovation if he thinks that the government was being fundamentally dishonest or evasive in the way it went about curtailing liberty.

Scalia—by far the most aggressive critic of the individual mandate today—seemed to speak directly to Kennedy in his treatment of the government's argument that the individual mandate is a "necessary and proper" adjunct to Obamacare generally. Referring to Printz v. United States (1997), in which Scalia, Kennedy, and others struck down the Brady Handgun Violence Protection Act as an unconstitutional violation of state sovereignty, Scalia noted that that federal law was not "proper" within the meaning of the Necessary and Proper Clause because it upset well-settled principles of constitutional structure. There, the structural principle was federalism; here, the principle is the limitation and enumeration of federal powers. It is precisely the point that Kennedy, too, is mulling. (And Scalia also raised the honesty question later, as he invoked President Obama's infamous assurance that the mandate isn't a "tax." The solicitor general didn't help his cause or credibility by replying that the president said only that the mandate wasn't a "tax increase," not that it wasn't a "tax.")

In fact, Obamacare's best proponents today weren't the solicitor general; they were Justices Stephen Breyer and Ruth Bader Ginsburg. Ginsburg made clear that she believes the individual mandate is necessary to prevent uninsured persons from shifting their own health care costs on to society, and therefore the mandate is constitutional under the Necessary and Proper Clause or Commerce Clause. Justice Breyer repeatedly compared the individual mandate to Chief Justice John Marshall's endorsement of the Bank of the United States, in the seminal case of McCulloch v. Maryland, and otherwise embraced the Government's arguments.

Inevitably, people will want to "count noses" and figure where the nine justices stand. Ginsburg and Breyer made clear that they support the individual mandate; Elena Kagan was less effusive, but she seemed more or less supportive, too. On the other side there is Scalia, Chief Justice John Roberts (who cast serious doubt on the government's attempt to define the market broadly or construct limiting principles on this new federal power), and Justice Samuel Alito (who pressed back very hard on the notion that the mandate is necessary to prevent the uninsured from shifting costs on to the general public). Justice Clarence Thomas was characteristically silent, although it is a bit hard to imagine him siding with the government, given his longstanding constitutional principles.

Kennedy, of course, remains in the middle. But for all of the talk that Roberts could ultimately provide a sixth vote in favor of Obamacare, another justice’s questions hinted that there could be a sixth vote in the other direction.

Virtually every mainstream or liberal commentator presumed that Justice Sonia Sotomayor is a locked vote for Obamacare. But early in the argument, she was very direct in challenging the solicitor general to clarify his arguments, and to offer a limiting principle on the government's view of its power to impose mandates under the Commerce Clause and Necessary and Proper Clause. Later, she offered the same criticism regarding the government's alternative argument that the mandate is a tax: "General, the problem goes back to the limiting principle. Is this simply, anything that raises revenue that Congress can do? ... So there has to be a limiting principle." If she wants to affirm the individual mandate, she's going to have to do all the hard work herself; the solicitor general did her no favors.

Later, in questioning the plaintiffs' lawyers, she was skeptical of some of their arguments, but she was not particularly aggressive. She asked Paul Clement, counsel for the state plaintiffs, whether the government could achieve the same ends through an outright tax credit; she also asked him whether the states could impose similar mandates. And later, in questioning Michael Carvin, counsel for the private plaintiffs, she suggested that all manner of federal regulations are to some extent mandates, because they mandate that if you want to buy a given kind of product (say, a car), then you have to buy one with the requisite safety or environmental features. Still, even in this line of questioning, she did not come across as a full-throated supporter of the individual mandate.

In the end, predicting Supreme Court decisions based on the oral arguments alone is a fool's errand. In light of these arguments, it's impossible to say whether the Court will affirm the mandate or strike it down. Still, based on the tone of questioning alone, Obamacare's advocates ought to worry less about winning Roberts, and worry more about losing Sotomayor.

Adam J. White is a lawyer in Washington, D.C.

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