The Supreme Court and the Individual Mandate

Over on Brad Joondeph’s indispensable blog about the health care litigation, he notes that we still only have one circuit court opinion on the constitutionality of the individual mandate.  The cert petition from that case (in the Sixth Circuit) was filed recently and will probably be taken up by the Court in October.  This raises an interesting question. Suppose that there is no circuit split by then (i.e., the Fourth and Eleventh circuits do nothing or concur with the Sixth in upholding the mandate).  Should the Court take the case?

There are at least three factors that could lead the Justices to take a case on which there is no split.  One is that a litigant wants a Supreme Court precedent overruled.  The circuits can’t do that, and hence there is usually no reason to think that there would be a circuit split.  Second, a majority of the Court may want to change the law or make a statement about existing law–circuit split or no–and is confident that it has the votes.  Third, there is a compelling interest in finality about a very important legal issue.

The last explanation is the only one that makes sense with respect to health care, but I’m not sure how powerful that interest is right now.  After all, the finality could be supplied by the 2012 presidential election, with the individual mandate repealed or reaffirmed by the outcome of that vote.  Personally, I think that the Court should not take this case up next year, though if there is a circuit split my plea for patience will not be convincing.

What do you think?

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8 Responses

  1. TJ says:

    I’m left a little confused about whether your list aims to be normative (i.e. the factors the court should use) or descriptive (i.e. the ones that they do use). If it is descriptive, I think the all-encompassing fourth factor is whether the Justices find the issue “interesting,” and the health care law has that in spades, so I think most of the money is on them granting it. As for whether they should, that is a much more difficult question.

  2. arthur says:

    The health care bill will be repealed only if (a) 60% of the Senate, 50% of the House, and the President vote to repeal or (b) two thirds of the House and Senate override a veto. If, say, 57% of the Senate and 61% of the House vote to repeal, or alternatively if 65% of the Senate, 65% of the House, and the Presidential candidate who received 51% of the vote but lost in the electoral college all favor repeal, the individual mandate will remain on the books. Not much of a reaffirmation, let alone a ruling on constitutionality.

  3. Gerard Magliocca says:


    Both descriptive and normative. I would say that interesting does not count as a sufficient motivation if you’re worried that you’ll lose, though.


    What if repeal of the individual mandate is tied to the next increase in the debt ceiling in 2013?

  4. Arthur,

    Then again, all of those difficulties facing repeal were also faced to pass it. Our current legislative process makes it difficult to pass laws, but easier to maintain them. If it passed with strong support but opponents can’t garner equally strong support to repeal it, then it’s fair to say it’s been “reaffirmed.”

  5. TJ says:

    Gerard, I agree that the preference for winning outweighs the preference for deciding interesting cases, but as a descriptive matter I think that individual justices will sometimes take a cases even when they are not certain they have the votes on the merits. After all, it needs to be remembered that the baseline of doing nothing is that the courts of appeals’ judgment becomes presumptively the final word. If the side that favors reversal thinks it has a 49% chance of getting AMK’s vote, that is probably better than a 100% chance of the courts of appeals (assuming they are unanimous and splitless) being treated as a definitive pronouncement.

  6. arthur says:

    3. Repeal will still require the supermajority numbers to be repealed, whether the reason is that the actors believe the law is unconstitutional, or unwise, or that it’s worth sacrificing in order to accomplish some other goal.

    Is your argument that the Supreme Court should presume that legislation that is not repealed quickly is Constitutional? That’s essentially an argument that Acts of Congress aren’t subject only to legislative review, and not to judicial review.

    4. If a legislature can create legislation only by majority or supermajority action, I don’t see the sense in which a minority has the ability to “reaffirm” legislation.

  7. “Is your argument that the Supreme Court should presume that legislation that is not repealed quickly is Constitutional?”

    The Supreme Court presumes that all legislation is constitutional.

  8. Chris Bryant says:


    I emphatically agree that the Supreme Court “should NOT take this case up next year.” The Supreme Court should intervene only when the courts of appeals are unable to settle a matter in a manner consistent with existing law (however that is understood) — by’ for example, dividing on the issue or by moving “too slowly.” We do not yet have a circuit split and may not ever have one. And the only “need” for swift settlement is a political one — either party will use a Supreme Court victory to beat the other over the head — which in my mind counsels in favor of Supreme Court retraint, not intrusion.

    This issue presents a great opportunity to undersore the point that “the law” including “constitutional law” is not just whatever five Justices happen to think (or feel) at any one point in time. The law is the verdict of our legal systm operating to well established norms, and absent a circuit split that verict can be supplied by the courts of appeals.

    Great post!