In light of the bruising that Solicitor General Donald Verrilli took during this week's oral arguments, no one can blame Obamacare's supporters for trying to offer (belatedly) winning answers that the government’s attorney lacked. Two of the early entrants are law professors Akhil Amar and Jeffrey Rosen. But their efforts do not improve much on the government's offering.
Amar argues that Verrilli should have invoked the Militia Acts of 1792, which included a "mandate" requiring citizens to keep firearms at the ready. Anticipating the rejoinder that the Militia Acts and Obamacare were enacted pursuant to separate provisions of the Constitution, Amar replies, "It’s hard to see why that matters. If a mandate is a permissible regulation of a well-regulated militia" -- quoting the Second Amendment's opening words -- then "it is an equally permissible regulation of interstate commerce."
But Amar is looking at the wrong section of the Constitution. The Militia Acts were not a "regulation" passed under the Second Amendment; they were enacted pursuant to Article I, Section 8 of the Constitution, which gives the federal government the "power to ... provide for calling forth the Militia" and "to provide for the organizing, arming, and disciplining the Militia." In other words, the Constitution gives Congress the power not just to "regulate" the militia— on par with its power to "regulate" interstate commerce—but to affirmatively command the assembly and equipping of the militia. If the Constitution gave Congress the power to "call forth" interstate commerce, then Obamacare's individual mandate would not be in dispute.
Elsewhere, Jeffrey Rosen asserts that one "simple" argument would have won the day for the government: Namely, that health care subsidization inherently cannot be handled on a state-by-state basis, because any state that attempts to subsidize health care for the poor will only "end up attracting uninsured people from other states seeking to take advantage of its benefits." This, he posits, is the sort of "limiting principle" that would satisfy Justice Kennedy's apparent concern that affirming the mandate would open the door to mandates in myriad other federal programs.
Even assuming that Rosen's argument has a factual foundation—that is, that people will uproot themselves and move to new states simply on account of a welfare subsidy in another state—his remedy goes far beyond what needs to be done to avoid the interstate spillovers that he fears. Congress could appropriate funds subsidizing states' own subsidization of health benefits for new residents. Rosen's solution simply does not speak to the question frustrating the justices—that is, the introduction of a new "mandate" power under the Commerce Clause raises the specter unlimited federal power. Indeed, it is difficult to see how Rosen's proposal improves upon Justice Kennedy's own suggestion that markets in health insurance and health care may be inherently unique in terms of the external costs that some persons can impose upon others.
Finally, as the debate continues through the weekend, we can expect Obamacare's supporters to complain that the justices spent not enough time talking about the Constitution's "text." Slate's Dahlia Lithwick, already the Roberts Court’s most reliably acerbic critic (excepting Linda Greenhouse, whose lifetime achievement earns her emeritus status, just to give the rest of the field a chance), was beating this drum in an online chat with readers: "Technically they [i.e., the Justices] are really just meant to look at the law and the Constitution and NOT their personal feelings about whether the poor should be covered. That said, I didn’t see much talk of law either. It was pretty inchoate policy talk, more a Poly Sci seminar than Con Law at times."