In his recent response to Randy Barnett, co-blogger Orin Kerr argues that previous precedent, especially the Supreme Court’s 2010 decision in United States v. Comstock justifiably led many observers to expect that the Court would readily uphold the individual health insurance mandate, and that its failure to do so under the Commerce and Necessary and Proper Clauses was a major change from Comstock and other prior precedents.
I agree that Comstock was a very broad interpretation of federal power in some respects, and I believe it was wrongly decided. Yet, even at the time Comstock was decided, it was easy to find crucial differences between that case and the individual mandate case. In a post written on the day that Comstock came down and in an article about Comstock published in the fall of 2010, I pointed out two such distinctions. First, Comstock endorsed a broad interpretation of the meaning of “necessary” in the Necessary and Proper Clause, but said nothing about the meaning of “proper.” The challenge to the mandate was primarily based on the idea that it was “improper” rather than unnecessary. Second, in upholding the law at issue in Comstock, the Court relied in part on a five-factor test that, when applied to the mandate mostly cut against the federal government. In my article (pg. 266), I also noted the possibility that the inclusion of the five factor test in the opinion may have been the price that Chief Justice John Roberts forced the four liberal justices to pay for casting the decisive fifth vote in favor of the majority opinion (Justices Alito and Kennedy concurred in separate opinions that outlined much narrower visions of the scope of federal power).
These distinctions were, in fact, exactly the ones relied on by Chief Justice Roberts in his key swing vote opinion in the individual mandate case. He concluded that the individual mandated was not “proper,” even if it was “necessary,” and also cited key differences between the law in Comstock and the individual mandate under the five factor test, such as that the mandate was not “narrow in scope” (though Roberts did not go through all five factors individually).
Orin and other observers who expected the mandate case to be a lopsided victory for the federal government also missed the significance of Justice Kennedy’s opinion for a unanimous Court in the 2011 case of Bond v. United States, where he emphasized that constitutional “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. As I pointed out in two posts written well before the mandate oral argument (see here and here), this signaled that the Court’s key swing voter was unlikely to uphold the mandate if it meant giving Congress a virtual blank check to enact any other mandates it wanted. And inability to specify a meaningful limit to the scope of its power was always the key flaw in the federal government’s position.
I don’t mean to suggest that, after Comstock and Bond, it was clear that a majority of the Court would reject the federal government’s Commerce and Necessary and Proper arguments, or even that it was unreasonable to believe that the federal government was more likely to win on these points than the plaintiffs. I also don’t mean to suggest that I myself was an especially good prognosticator during the individual mandate litigation. Although I was right about the implications of Comstock and Bond, and also right (from early on) to expect a close decision, I got some other important points wrong, especially in dismissing the possibility that the mandate might be upheld as a tax. But I do think Comstock and especially Bond should have alerted observers to the likelihood that the individual mandate litigation would not be an easy win for the federal government. In combination with other factors, they certainly had that effect on me.
UPDATE: Randy Barnett had some prescient thoughts about the interaction between Comstock and the individual mandate case in this post written the day Comstock was decided.
UPDATE: #2: I should note that, until the oral argument, I consistently predicted that it was more likely that the mandate would be upheld than struck down, and afterwards, I said it was a 50-50 proposition. So I don’t blame anyone merely for believing that the the mandate was going to be upheld under the Commerce or Necessary and Proper Clauses. My critique is directed at those who claimed that the case would be an easy win for the federal government and that any other result would be a major break with precedent, in some cases long after there were plenty of indications suggesting otherwise.