Once again, it seems to come down to Anthony Kennedy. Which doesn’t inspire a lot of confidence, but which is better than leaving it up to a fifth liberal. At least this way we have a chance. And as you’ll see if you keep reading, it’s a real chance.
The constitutional problem with the mandate is simple: the federal government is forcing people to buy something in order to regulate a market. The government’s position is that the uninsured are already “in” the market for health insurance, because of the possibility that an unexpected illness will put them there. Many of the conservative justices seemed to disagree, accepting the opponents’ position that Congress would be forcing individuals to enter commerce. This is, as Justice Kennedy seemed to recognize, an unprecedented move that would change the relationship of the individual to the federal government:
Three of the four other conservatives (Thomas nearly always remains silent) peppered the government’s lawyer with hypotheticals and demands for some principled way of limiting the principle that government could force a citizen to buy something. The government lawyer sort of choked and sputtered and paused his way through the opening part of the argument in responding to examples like these.
For example, Justice Scalia asked: can Congress force people to buy certain foods? Everybody has to buy food, after all, so there is a market for food to regulate. Does that mean so you can make people buy broccoli? If the idea is that we are forcing people to purchase insurance to make it cheaper for others, can Congress make people buy cars based on the principle that a car maker that can’t sell enough cars will have to raise prices, causing those who do buy cars to spend more?
Chief Justice Roberts asked: well, there’s a market in emergency services, so can we force people to buy cell phones to allow everyone to call 911 in an emergency? This way the government regulates that market and makes sure the response will be quick.
Justice Alito asked: isn’t there a market for burial services? When the government lawyer agrees, Alito asked: wouldn’t this be like forcing young people to buy their own burial services, because otherwise they will be forcing their expenses on someone else?
Justice Breyer watched this parade of horribles shambling by and pronounced it a beauty pageant. What’s wrong with any of that? he wondered. What’s wrong with Congress forcing people to buy burial services, if Congress guarantees uniform burial for anyone? What’s wrong with Congress forcing them to buy cell phones, if Congress is indeed regualating the market? What’s the big deal? Why, he said, Congress has created commerce out of nothing before — didn’t they create a central bank in McCullough v. Maryland? (Solicitor Paul Clement smartly pointed out that that was not a Commerce Clause case.)
But the conservatives were clearly concerned with the possible far-reaching consequences of upholding the mandate, The obvious point of all these hypotheticals seemed to be: Once we force citizens to buy something as a regulation on the market, how do we prevent Congress from using the same logic to make us buy something else? Once we let Congress start down this road, where does it end?
The lawyer kept responding, essentially, that this is a unique situation. But lawyers can always find a way to “distinguish” one situation from another. Sure, the typical lawyer arguing a car accident case might say, the plaintiffs in the case just like mine lost, but they were wearing blue shirts! My client was wearing a yellow shirt!
Sure, you can come up with ways that the market for health insurance is supposedly different. But do those points of difference provide a principled basis for distinguishing this mandate from other situations where Congress could order citizens to buy something?
And that is where Justice Kennedy will be making his decision.
I’ll make a couple of final points here.
First, nobody bags on Kennedy more than I do. I have less respect for him than anyone up there. He is a pompous self-important windbag. I can’t stand him.
But if I could remove him and replace him with a fifth Justice like Breyer, I wouldn’t. I’ll take my chances with a Kennedy. Because we might get what we want with Kennedy. We will never get what we want with Breyer. It’s a little like settling for Romney vs. accepting four more years of Obama. Sure, Romney’s a squish. But at least we have a chance.
And this is important stuff. As Kennedy notes, it does fundamentally change the relationship of the individual to the federal government if this mandate survives. If they sanction this, all bets are off. Congress will be able to do almost anything in the name of commerce.
There is also an excellent point that, because of our system of enumerated powers, this might be something the states could do — but it is not something that the federal government could do. (Second look at Romneycare, at least constitutionally?) Justice Scalia makes this point well here:
Finally, I want to also note that even if we beat this, Congress could come up with other ways to do the same thing. Even good-guy lawyer Paul Clement agreed that it would be tougher to oppose Congress’s actions if Congress simply said: OK, we’re taxing everyone. But we can make exemptions, right? So we’re exempting everyone with health insurance.
Clement didn’t accept that this would be constitutional. But it would be tougher, legally, to oppose.
Finally, I will just say that yesterday’s arguments were as fascinating as the first day’s were deadly dull. It’s an issue every citizen should be acquainted with, and you’ll learn more about our system of enumerated powers. Hopefully the clips above whetted your appetite to listen to or read the whole thing. You can do either by following this link.
Today’s arguments: severability. What happens if the Justices kill the mandate? Does it kill the whole law, or just that provision? This is likely to be drier stuff, but it’s important. We’ll come back to it, hopefully tomorrow.