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Obamacare on Trial: The Individual Mandate

7:18 PM, Mar 27, 2012 • By ADAM J. WHITE
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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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