Today’s oral argument was a good day for the anti-mandate plaintiffs and a troubling one for the law’s defenders. I have long argued that the weakest point in the federal government’s case is the failure to provide a coherent explanation of why the rationale for the health insurance mandate doesn’t also justify virtually any other mandate Congress might impose (e.g. here and here). All of the conservative justices raised this exact issue during the course of today’s oral argument, with the exception of the usually silent Clarence Thomas, whom few doubt will vote to strike down. And none of them seemed satisfied with Solicitor General Donald Verrilli’s answers. This does not bode well for the mandate.
I was also very happy to see this exchange between Verrilli and Justice Scalia regarding the Necessary and Proper Clause:
JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. 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 a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all
this questioning has been about. What — what is left? If the government can do this, what — what else can it
GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation -
JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that exists.
GENERAL VERRILLI: But it -
JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.
Scalia makes the key points that 1) a federal law must be both “necessary” and “proper” to be authorized by the Necessary and Proper Clause, and (2) a statute cannot be proper if the legal rationale for it would justify nearly unlimited federal power. These are exactly the arguments that we advanced in the amicus brief on this very issue that I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars.
I’m not saying that Scalia necessarily got the argument from us, or even that he read the brief. But whatever led him to take up this point, I’m very happy that he raised it. It is the key weakness in the federal government’s Necessary and Proper Clause argument, which is otherwise fairly strong – a weakness that the federal government almost completely ignored in their Petitioner’s brief for the Supreme Court. The federal government has tried to turn the Necessary and Proper Clause into a mere “necessary clause.” But, if Scalia’s views are any indication, the Supreme Court majority doesn’t seem to be buying.
As I explain in the amicus brief (pp. 28-29), this point also enables Scalia to distinguish his concurring opinion in Gonzales v. Raich, which many defenders of the mandate have been relying on. Raich did not address the issue of propriety. And in his concurring opinion in that case, Scalia emphasized (as he had in previous opinions) that “proper” is an independent limit on congressional power under the Clause, separate from necessity.
Before the oral argument, I thought that the plaintiffs had about a 30-40% chance of winning. I believed it was likely that the federal government would manage to persuade at least one conservative justice to buy one of their many “health care is special” rationales for the mandate. Now, I think the chances of the mandate being invalidated is at least 50%. The conservative justices just don’t seem to be biting on the “health care is special” hook.
On the other hand, it is still too early for mandate opponents to celebrate. The federal government has a whole raft of different “health care is special” arguments (I go through them and their weaknesses in Part I of this article). If the feds can persuade just one of the conservative justices to accept just one of these theories, they can still win. We certainly cannot rule out such a scenario. It could still easily happen. But unlike in high school debate, quantity of arguments in a major Supreme Court case is rarely a good substitute for quality. And the quality of the government’s “health care is special arguments” is at the very least highly suspect.
UPDATE: I have changed the original reference to “all five of the conservative justices” to exclude Clarence Thomas, who – as usual – did not ask any questions.