Obamacare at the Supreme Court, Day 2: As Good as It Gets

Today was the big day at the Supreme Court, as the second day of oral arguments in Florida v. Health and Human Services focused on the individual mandate provision of Obamacare.   This is the provision that forces most Americans to purchase qualifying insurance or pay a penalty every year for lack of coverage, and WyLiberty joined an amici (friend-of-the-court) brief challenging this provision.  Audio and argument transcripts are now available, but hats off to the Wall Street Journal’s reporters for excellent live-blogging during the arguments. (Because of restrictions in the courtroom on electronic devices, a team of reporters had to rotate in-and-out throughout.)

What can I say but, whew!

As in most of the previous cases leading up to the Supreme Court, the federal government’s argument that the individual mandate is justified under Congress’s power to tax went nowhere, and faced skepticism even by liberal justices such as Elena Kagan.  Thus, the arguments focused almost entirely on whether Congress could pass the mandate under the power to “regulate Commerce . . . among the several States” (U.S. Const. Art. I, §8, cl. 3) by “mak[ing] all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . .” (Art. I, §8, cl. 18).

Here is a quick rundown of highlights from each justice:

• Justice Alito was uniformly critical of the government, asking some of the best questions that illustrated the lack of a limiting principle in the individual mandate.  Early on in arguments, he panned the “everyone is in the health insurance market and can be forced to buy insurance” argument by pointing out other markets—like funerals and caskets—that we’re all a part of eventually.
• Justice Breyer went so far as to declare the existence of a federal police power and claimed that the federal government could force vaccinations in the event of an epidemic. That’s not true: the feds could certainly provide the states with vaccinations that they themselves may mandate, but cannot mandate vaccines just for being an American citizen.  I hope this gets some more attention, because Breyer’s question was very telling: it seems the feds can do just about anything when the circumstances fit the bill.
• Justice Ginsburg sees little to no distinction between being forced to purchase health insurance and to pay for government welfare:  “[I]t seems to me, to try to get care for the ones who need it by having everyone in the pool, but is also trying to preserve a role for the private sector, for the private insurers. There’s something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that’s fine, but if the government wants to get — to preserve private insurers, it can’t do that.”
• Justice Kagan was sympathetic to the federal argument.  Admittedly, although I do not believe she was required to recuse herself from this challenge, I heard “I hear they have the votes, Larry!” every time she spoke throughout oral arguments.  We’re all in the health care market, so we’re all subject to federal control.  
• Justice Kennedy’s first question was “Can you create commerce in order to regulate it?” He also asked “Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” (emphasis added.) Although Kennedy was later critical of some aspects of the state and individual plantiffs’ arguments, this seems a one-two punch that gets to the very heart of the mandate, neither of which were adequately addressed by the Solicitor General.
• Chief Justice Roberts joined Justice Alito with damning hypotheticals, asking whether all of the things we’ll eventually “need” in life justify federal laws requiring our preparation.  However, like Justice Kennedy he asked some pointed questions regarding the distinction between commerce and non-commerce, attempting to reconcile the case at hand with previous decisions.
• Justice Scalia distinguished his earlier concurring opinion in Gonzales v. Raich, the case that upheld the federal power to regulate marijuana grown and consumed within a state’s borders. Federal regulation must not only be necessary to carry out its powers, it must also be proper, and thus cannot undermine the Constitutional principles of limited, enumerated federal powers. This is a very big deal: stick with this, Justice Scalia!
• Justice Sotomayor had an interesting exchange with the Solicitor General, and showed some critical eye toward the fact that individuals will be forced to engage in commerce.  She was also critical of the tax argument (like Justice Kagan) in that if the mandate penalty is, in fact, a tax, there is no limit on the taxing power, either. However, she seemed ultimately more receptive to the federal arguments.
• Justice Thomas did not ask any questions (he puts little stock into oral arguments), but his commerce clause jurisprudence remains the most consistent on the bench in recognizing boundaries to federal power.

If I’ve had any new revelations about Obamacare from today’s arguments, it comes from Justice Breyer, and not just from his bold assertion of a federal police power to inoculate.  Justice Breyer also commented that he did not want to engage in policy arguments, but it seems inevitable in defense of the mandate:  government created a mess, and played no small part in making health care unaffordable.  This was in large part by making health insurance non-portable, driven by special interests rather than consumers, and a full-service system rather than an indemnity product (read: no longer insurance).  Congress aimed to remedy this not by fixing these problems, but by forcing everyone to buy a lackluster product.  It’s really only by government calamity that “everyone will someday be part of the insurance / health care market” and thus can be forced to buy in while they’re healthy: if health care was affordable many people would stick with fee-for-service.  It is frustrating that comments from certain justices illustrate this “tethered elephant” mentality: government created a mess and largely followed the Constitution, and may now fix it unconstitutionally. 

Today was historic.  If nothing else, law professors and commentators— who predicted as late as this morning in the New York Times that this is an open-and-shut case—should now acknowledge that this is a principled, not political, challenge to a federal law. Just like yesterday, a favorable outcome is not guaranteed. My takeaway from today’s oral arguments is ultimately little more than a good feeling at the roulette wheel.  Having said that, after today I feel about as good as one could after arguments over such a contentious issue.  It looks like 5-4 against the individual mandate.