With all the defeatist talk out there about how it is over for the individual mandate and likely over for the Affordable Care act, I want to offer a word of comfort: It’s not.
Famously now, Jeffrey Toobin, CNN’s legal analyst, said after oral arguments on Tuesday:
This was a train wreck for the Obama administration. This law looks like it’s going to be struck down.
After hearing that and after hearing similar remarks coming from several talking heads on the TV box, I waited until 1:00pm Central time and listened to the arguments myself. Better yet, I followed the transcript as I listened, stopping when necessary to analyze the arguments being made (much easier than yesterday) and the questions being asked.
What I found was that Solicitor General Donald Verrilli did get off to a horrible start. A really horrible start. He soon got help from Justice Ginsburg and Justice Sotomayor and Justice Kagan and by the end he had pretty much righted himself.
As expected, the conservative justices (except for Clarence Thomas who was likely texting Rush Limbaugh during the proceedings) executed an attack on the law, but nothing we hadn’t heard before and nothing that couldn’t be refuted.
Justice Scalia, who gets a lot of credit for being such an unassailable thinker, was not particularly good in his remarks* and it appears he will find a reason to vote against the law no matter how far he has gone in the past to justify an expansion of the government’s powers (when the government’s position happens to correspond with his own position on, say, the legality of medical marijuana) under the Commerce Clause. It appears to me that Scalia and the conservatives want to find a “limiting principle” on the government’s power under the Commerce Clause only when it is convenient.
Obviously, everyone was listening for clues from Justice Kennedy. Was he hostile to the government’s case? Hardly. He asked some tough questions, expressed some doubts, but in the end he also pressed former Solicitor General Paul Clement, who argued most of the case for the other side. At one point Kennedy said:
The government tells us … the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that … the young person who is uninsured is 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. That’s my concern in the case.
This should be seen as a good sign because those conservative judges who have upheld the mandate have said that the healthcare market is not like buying broccoli or cell phones (to mention a couple of examples used by the conservative justices during oral arguments). Everyone will eventually participate, either accidentally or on purpose, and the cost-shifting involved (because most hospitals are mandated to provide treatment) is unique.
There is not only a good possibility that Justice Kennedy will find a way to uphold the individual mandate, there has been some speculation that Justice Roberts might follow him. I was particularly surprised that Roberts stepped in to restate the government’s argument, when he thought the other side had miscast it, but that is a rather thin string to hang a hope that Roberts might make it 6-3 to uphold the law.
Finally, Paul Clement did do a very good job of presenting his case, but he knows that oral arguments are not necessarily the decisive part of a complicated case like this:
I’m a big believer that oral argument makes a difference, but I’m also a big believer that comparably the briefs make even more of a difference.
We shall see. Prediction: 6-3 to keep the Affordable Care Act whole.
*Here is one silly offering from Scalia:
Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Or how about this one:
Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers.
“Necessary does not mean essential, just reasonably adapted“? Huh? Necessary means “of an inevitable nature.” And essential means “absolutely necessary.” You see how easy it is to bend words to fit your ends?
And although Scalia worries about violating the “sovereignty of the States” these days, he did not worry much about that in 2005, when he found it necessary to stomp all over California’s right to allow its citizens to grow marijuana for their own medicinal use:
As we implicitly acknowledged in Lopez, however, Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” … This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.” … As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.”