Paul Clement and Justice Kennedy
Early on, there were predictions that the government would win by a lop-sided margin.
When I read Paul Clement’s brief, I began to predict that the individual mandate would not survive. It is masterful, weaving together themes of federalism and liberty, revealing the dangers to accountability of allowing regulated industries to be bought off by mandating purchases of their products, and pointing to other markets that share features with the health (insurance) market. He was masterful again at oral argument, giving what Tom Goldstein at scotusblog calls “the best argument I’ve ever heard.” Indeed, I had the impression that if he were not there yesterday, things would be looking better for the government.
His linking of federalism and liberty plays right into Justice Kennedy’s wheelhouse, as Kennedy’s questioning made clear. And the accountability point seemed to trouble Kennedy, too, as he mused:
“If the Congress has alternate means, let’s assume it can use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power it’s using and use the correct power. On the other hand, it means that since . . . Congress can do it anyway, we give a certain amount of latitude. I’m not sure which way the argument goes.”
Kennedy may yet be persuaded that the health care and health insurance markets are unique (noting that “the young person who is uninsured in 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”). But Chief Justice Roberts and Justice Alito – Justices that some predicted would uphold the mandate — didn’t seem to be buying that argument. To the contrary, their questions about cell phones for emergency services and burial insurance pushed against the uniqueness of health care and health insurance.
I was never persuaded by some recent claims that Justice Scalia would somehow be in play, so his hostility to the mandate was not surprising. Interestingly, he suggested tying this case to the anti-commandeering principle of New York v. United States and Printz. Just as those cases rely on the sovereignty of the states as an element of the constitutional structure, so, too, he suggested reliance in this case on the limited nature of federal power as an element of the constitutional structure, noting that the 10th Amendment reserves power not simply to the states, but to the people.
I was somewhat surprised at how little help the Justices who seem to accept the government’s position provided in building a bridge for Justice Kennedy. There was certainly some, but Justices Breyer and Sotomayor talking about the political safeguards of federalism was hardly calculated to bring Kennedy to their side. I was briefly heartened to hear Justice Kagan mention that this is a facial challenge, and that perhaps the case would look different if it were an as-applied challenge by Christian Scientists, but this was hardly enough to vindicate my hope that the Court might follow Judge Sutton’s lead and uphold the mandate on its face, while leaving open as-applied challenges.
A couple of thoughts on other posts:
I was gratified to see Jennifer’s “cookie” suggestion, because I had tumbled to the same possibility last night.
But I am not persuaded by Nicole’s argument that the challenger’s concession that mandating the purchase of insurance at the point of purchasing medical care would be constitutional shows “a complete lack of understanding about how insurance works.” Sure, it wouldn’t make sense to have people buy insurance “at the moment of the cancer treatment, or the auto accident, or the home fire.” But most medical care is far more routine – and far less expensive – than these calamities. If the person who shows up for such routine care (the check-up, the eye exam, the dental exam, the high fever caused by a readily-treatable infection, the cut needing a couple of stitches, the sprained ankle needing an x-ray, the visit to get a prescription for contraceptives) were told exactly what the PPA tells them now even if they never show up for care – that is, buy insurance or pay a penalty — insurance risk pools could work. Indeed, virtually everyone would soon have the obligation to buy insurance or pay the penalty. If health “insurance” were like other forms of insurance, and protected only against things that we thought unlikely to happen during a term of coverage, this point would be more obvious: requiring health insurance at the time of purchase of health care services would be akin to requiring auto insurance at the time of purchase of a car. But the point is obscured, I think, because we cover routine maintenance with health “insurance.”