Cookies and the Affordable Care Act

No, this is not a post about how the government is going to force you to buy cookies, even if that would be better than broccoli. It’s about how I came to realize that the minimum coverage provision is doomed: because one of the first things I learned as a litigator was that judges like to give a cookie to each side.

Until last week, I thought the individual mandate stood a chance of being upheld. Specifically, I thought that Justice Scalia might have enough intellectual honesty to stick to the logic of his Raich concurrence and vote to uphold the law.

But last week, the liberal blogosphere started lighting up with dire warnings about the ACA’s expansion of Medicaid, which is on the chopping block tomorrow. “You think the argument against the mandate is radical,” they intoned, “but look at this threat to the spending power.” This Supreme Court is so radical, the argument runs, that it is poised to declare the modern administrative state unconstitutional, in the absence of any split in the lower courts or even any plausible argument based on precedent.

That’s when I realized that Medicaid is the cookie for the left, and the only reason for the cert. grant on that issue was to make the Court look moderate when it strikes down the rest of the ACA. Of course, it only takes four to grant cert. But the Cookie Principle is also useful when four are trying to win over a fifth Liberals ought to stop raising the hue and cry that will make the Court seem restrained when it “only” strikes down minimum coverage.

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5 Responses

  1. This argument works both ways. The cookie for the left could be the MCP, not Medicaid.

  2. Matt Bodie says:

    Might there also be a “cookie” in terms of the severability? Don’t the Justices have to decide the extent to which the whole act goes down if the mandate does? The Court did something similar in the Sarbanes-Oxley case: they found PCAOB to be unconstitutional, but spared the rest of the Act.

  3. Jennifer Hendricks says:

    Matt —

    The problem with compromising on severability is that the mandate really is necessary to the whole model of reform. You can’t (1) try to base your entire health-care system (including entirely predictable routine care) on a for-profit insurance model, (2) prohibit exclusion of preexisting conditions, and (3) not require everyone to have insurance.

    So really, the challengers’ argument for severability is inconsistent with the primary argument against the mandate.


  4. Matt Bodie says:

    I agree. But if only the mandate is struck down, there is political disequilibrium, and both political parties would have the incentive (from the insurance companies) to rejigger the law. If the whole thing is struck down, likely nothing will happen, which is much worse for the pro-reform side.

  5. Andy Siegel says:

    I agree with both Jen and Matt. As I told the Washington state appellate judges at a conference today, this sets up perfectly for Chief Justice Roberts. He can keep the opinion on all four issues–firmly but politely striking down the mandate with the votes of the four conservatives, striking down between five and ten crucial sections of the statute that are realistically unseverable for the reasons Jen states with dissents from both sides, and reluctantly rejecting the Medicaid challenge while making a lot of bad law and perhaps provoking a dissent from the right for cover. If that is the result, he will have moved the law sharply to the right and accomplished his political aims while looking like a moderate consensus-builder.