Thanks to everybody who commented on my previous post—wherein I described the Obamacare Supreme Court case as a “bad joke”—even those who sought to unmask me as an agent of the British monarchy who knows nothing about the American traditions of individual liberty and popular sovereignty. Today, just for the sake of argument, I’ll assume that the stated concerns of the conservative Justices aren’t merely a cover for furthering a thirty-year-old right-wing project to roll back the New Deal and the Great Society.
After Tuesday’s hearings, Lyle Denniston, a reporter at the excellent SCOTUSblog, summarized things thus: “If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone.”
Time after time during Tuesday’s hearing, Justice Kennedy and his conservative colleagues pressed Donald Verrilli, the solicitor general, on where the federal government’s power to oblige people to purchase products in the marketplace would end. Justice Scalia, trotting out an argument first raised in the D.C. Circuit by Judge Laurence Silberman, asked whether the feds could mandate purchases of broccoli. Chief Justice Roberts asked about cell phones. Perhaps the key exchange came when Justice Alito said to Verrilli, “Before you move on, could you express your limiting principle as succinctly as you possibly can?”
A number of commentators have criticized Verrilli for failing to provide a pithy answer. But what he said was perfectly comprehensible. Rather than attempting to establish a broad legal right on the part of the federal government to force people to buy things if it is in the public interest, he restricted his argument purely to the health-insurance market. Citing the Necessary and Proper Clause of the Constitution, Verrilli said that as part of a “comprehensive scheme” to reform health care, the government could regulate behavior that might well undermine these efforts, such as the failure to purchase health insurance. Secondly, under the Commerce Clause, which I referred to yesterday, the federal government could regulate the “timing of payments by imposing an insurance requirement … when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.”
Now, there aren’t many commodities sold in a market that people will receive whether they pay for them or not, thus creating the potential for shifting costs onto other people. Broccoli isn’t such a commodity, and neither is a cell phone. Some of the liberal Justices pressed Verrilli to go broader. Justice Breyer, citing the 1819 McCulloch v. Maryland case, in which the Court approved the founding of the Second Bank of the United States, suggested that the federal government had the right to create commerce where none previously existed—a bone of contention to Kennedy and others—and that this principle could be used to make people buy other things, such as burials. But Verrilli stood his ground, saying he was making a narrower case restricted to health insurance.
For fans of high principles and impassioned debates, this wasn’t very satisfying. I, for one, would have enjoyed seeing Verrilli challenging some of the conservative Justices on their own grounds, and defending the individual mandate on the grounds of economic efficiency and cost-benefit analysis. Ever since the rise of the “law and economics” movement, conservatives like Roberts have elevated efficiency concerns to a potentially decisive role. And it’s patently clear that if you want to make retain a private insurance market and make it work efficiently, providing affordable coverage to more people, you need some form of individual mandate.
But given the makeup of the court, I think Verrilli made the right choice. If they had been forced to acknowledge the existence of a hitherto unnoticed general principle that justifies an extension of government interventions in the marketplace, the five conservative Justices would certainly have balked. In restricting his argument exclusively to health insurance, the solicitor general provided Justice Kennedy, in particular, with a potential out—a way to approve the individual mandate as a one-off that doesn’t apply to other commodities. Kennedy, in his final words, appeared to be moving in this direction. Young people and others who don’t buy health insurance come “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,” he said. Come June, when the case is finally decided, this just might turn out to be the limiting principle that saved Obamacare.
Photograph by Karen Bleier/AFP/Getty Images.
