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.”

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6 Responses

  1. Norman Williams says:

    The States’ point-of-sale concession does show a lack of understanding of risk diversification and aggregation that underlies insurance, IF the purchaser can cancel the insurance following the need for it (i.e., following the surgery or treatment course). And that scenario does seem to follow from the States’ constitutional argument — if Congress cannot force you to participate initially in commerce against your will, surely it cannot force you to remain in commerce against your will. Hence, it is hardly a viable policy alternative to suggest that Congress can and should have limited the mandate to persons at POS.

  2. Joe says:

    The Paul Clement love is high among insiders.

    “the best argument I’ve ever heard”

    If you say so. As to how “masterful” the brief was, over at Balkanization the weakness of his arguments were ridiculed. Did he include some comment on how Madison and Hamilton “surely” would have agreed with him, like he did on direct taxes? I found that rather lame myself.

    I’m sure he will be “masterful” in defense of liberty when he argues against equality liberty for gays and lesbians. I know. I know. He’s “masterful,” not necessarily right.

  3. Mike Zimmer says:

    Eddie, I don’t understand your point: Are you suggesting that Congress lacks to authority to define health care insurance to cover all health care needs but has power to define some subset of all health care?

    Also, assuming the Rad Right wins and the ACA goes down, does that put in jeopardy Medicare? Sure it is single payor but is that difference significant? And, I suppose you could argue that it isn’t exactly “insurance” because what workers pay now covers the health care expenses of retirees now. But, isn’t figuring out such things exactly what we expect Congress to do (even though they do a radically poor job of it)?

  4. NC says:

    Edward, perhaps your last paragraph suggests that we should separate routine care and “insurance.”

  5. Edward Hartnett says:

    Norman: I agree that the “point-of-sale concession does show a lack of understanding of risk diversification and aggregation that underlies insurance, IF the purchaser can cancel the insurance following the need for it.” But that is a big IF. I don’t see why, given the concession, Congress couldn’t require everyone who receives health care to purchase an insurance policy with (say) a five year term. People don’t generally have the right to simply cancel their contracts, and a court that accepted a right not to enter into a contract does not have to accept a right to cancel contracts that are entered into.

    Joe: The “I” in the quote is Tom Goldstein, not me.

    Mike: No. My point is that Congress could get very nearly everything it got under the ACA, even accepting the challenger’s view of the commerce clause, by requiring anyone who purchases routine, ordinary, not-terribly-expensive health care to buy insurance at that point. If we had the sort of insurance we had a generation or two ago — which tended to cover only non-routine, very expensive care — it would be easier to see that requiring the purchase of insurance at the time of purchasing routine care would not mean that people would only buy insurance when they needed expensive care.

    NC: I think there are very good cost and public health reasons to make routine care cheap and accessible. But I do think it is at least somewhat misleading to call that insurance.

  6. EMS says:

    The reason the point of sale doesn’t work is that people are uninsurable when they arrive at the emergency room with a serious problem, such as a head injury. Insurance companies are happy to take money from healthy people, but someone at the e.r. door could have hundreds of thousands of dollars in bills.

    And the challengers to ACA don’t want to pay for routine health care through health insurances. Now they can pay for care themselves. Or, one point not made in the argument, they can defer care until they turn 65 and get Medicare, with the result that the first few years after 65 result in high medical bills for some individuals.