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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.

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