Testifying today before the House Budget Committee, Jeffrey Zients, acting Director of the White House Office of Management and Budget, acknowledged that the penalty provision used to enforce the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is not a tax. Philip Klein has details (and video) here.
Archive for the ‘Individual Mandate’ Category
Regular VC readers might be interested in knowing just how many briefs in the individual mandate case have been authored by your humble Conspirators. In this post, I try to summarize all of them. Not surprisingly, they all urge the Court to strike down the mandate.
Pride of place goes to Randy Barnett’s coauthorship of the merits brief for the National Federation of Independent Business and other private plaintiffs in the case. Randy is in many ways the architect of the legal strategy against the mandate.
My own amicus brief on behalf of the Washington Legal Foundation and a group of constitutional law scholars, argues that the mandate is not a “proper” exercise of Congress’ power under the Necessary and Proper Clause. I blogged about it in more detail here. Among our legal scholar amici are VC co-bloggers Jonathan Adler and Todd Zywicki.
David Kopel is the author of an excellent brief on behalf of the Independence Institute, Gary Lawson, Robert Natelson, and Guy Seidman, which focuses on a different aspect of the Necessary and Proper Clause. Lawson, Natelson, and Seidman are among the leading academic experts on the Clause.
John Elwood is the counsel of record on this amicus brief on behalf of the American Legislative Exchange Council, an organization of some 2000 conservative and pro-free market state legislators. John’s brief focuses on the Commerce Clause, the Necessary and Proper Clause, and especially on the ways in which the mandate is inimical to the interests of the states.
Former VC-er Erik Jaffe is the counsel of record on this amicus brief for Docs4Patient Care, the Benjamin Rush Society, the Pacific Research Institute, the Galen Institute, and Angel Raich (of Gonzales v. Raich fame).
It’s possible that I have inadvertently missed some other VC-authored brief. If so, I’m sure my co-bloggers will set me straight.
Among the many amicus briefs filed in Supreme Court on the individual mandate case in recent days is this one urging the Court to strike down the mandate, on behalf of a group of supporters of single payer health care.
A few weeks ago, I wrote a post criticizing claims (usually made by left-liberal defenders of the mandate) that conservatives and libertarians should support the mandate because it is the only alternative to socialized medicine. One of the points I made was the following:
[I]f getting rid of the individual mandate really will bring on the advent of socialized medicine, why don’t any liberal activists and health care experts support it? There are plenty of left-wingers who would prefer socialized medicine to the Obama plan. If they think that the repeal of the latter would lead to the former, then they should form a coalition with Obamacare opponents on the right and work to get it repealed. A small number of liberals are in fact willing to get rid of the mandate, most notably Howard Dean. But even Dean doesn’t claim that abolition of the mandate would lead to socialized medicine. He merely thinks that the mandate is a political liability for Democrats and that the Obama plan can work just as well without it. The extreme rarity of left-wing support for repeal of the mandate suggests that few liberals genuinely believe that getting rid of it is likely to lead to socialized medicine.
The organizations represented in this brief (Single Payer Action, It’s Our Economy, and a group of fifty physicians who support a single payer system) do seem to believe that getting rid of the mandate would help pave the way for a single payer system – though the legal arguments in their brief don’t rely on this idea. So there are at least some single-payer advocates who want to abolish the mandate and believe that this will help their cause in the long run.
That said, I’m still not convinced that opposition to the mandate is a poor strategy for opponents of socialized medicine. Many of the points I laid out in my earlier post on the subject are completely independent of whether single-payer advocates happen to agree with me. Moreover, it seems clear that the vast majority of left-wingers still do support the mandate, at least in the sense that they consider it to be an improvement over the preexisting status quo and do not believe that it is an obstacle to further expansion of government control over health care.
Looking at a relatively complete list of briefs filed in the case, it is noteworthy that every other brief filed by a left of center party urges the Court to uphold the mandate – many of them defending the mandate on policy as well as purely legal grounds. With due respect to the parties represented in this particular brief, none of them seem to be major players in the public policy debate. However, I welcome correction from health care experts who think I may be underrating their importance.
We have just filed an amicus brief in the individual mandate case that I wrote on behalf of the Washington Legal Foundation and a group of prominent constitutional law scholars. The brief is available here. The legal scholar amici include Steve Calabresi, James Ely, Steve Presser, and Volokh Conspiracy bloggers Jonathan Adler and Todd Zywicki, among others. Several other prominent legal scholars were unable to join us because they are involved with other amicus briefs in the case.
Rather than considering the full range of constitutional issues in the case, we decided to focus on why the mandate falls outside the scope of Congress’ powers under the Necessary and Proper Clause because it is not “proper.” We thought that an in-depth analysis of this crucial, underemphasized issue would be more useful than a brief that covered multiple issues in a more superficial way and that would overlap far more with other briefs filed in the case. As far as I know, this is the only amicus brief that focuses solely on the issue of propriety.
The problem of propriety is the main flaw in the federal government’s claim that the Necessary and Proper Clause authorizes the mandate – which is otherwise the strongest constitutional argument in favor of the mandate. It is striking that the Justice Department largely ignores the issue of propriety in their brief for the Petitioners. As explained more fully in our brief, the federal government’s position essentially transforms the Necessary and Proper Clause into just a “Necessary Clause.” This goes against logic, the text of the Constitution, the original meaning, and Supreme Court precedent. We hope to focus more attention on this weakness in the federal government’s case.
Last week, I was a participant in the 2012 Fordham Debate at the University of Utah’s S.J. Quinney College of Law. The topic was the constitutionality of the minimum coverage requirement (aka the individual mandate) of the Patient Protection and Affordable Care Act, and my interlocutor was David Orentlicher of Indiana University. For those interested, here is the video of the debate. Time permitting, I’ll write up a synopsis of my remarks as well.
That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA over the past couple years, most of what is in the article will already be familiar to you. Here is the abstract:
The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.
The private respondents’ brief, with Michael Carvin of Jones Day as counsel of record, and our co-blogger Randy Barnett as co-counsel, is available here. The state respondents’ brief, with Paul Clement counsel of record, is here.
When DOJ filed its brief, I noted that “The word ‘Sutton’ appears 14 times, and the word ‘Kavanaugh’ appears 5 times.” I suppose the analogous stat for the respondents’ briefs would be that the word ‘unprecedented’ appears 23 times. I was interested (and somewhat surprised) that the word “inactivity” appeared only 4 times between the two briefs; it was mentioned 3 times in the private respondents’ brief, and only once in the state respondents’ brief (and in the procedural history section rather than the argument section).
Hat tip: ACA Litigation Blog.
UPDATE: I have rewritten the post because the state’s brief is also now available.
The Kaiser Family Foundation’s latest poll (toplines here) finds that two-thirds of Americans oppose the individual mandate and a clear majority — 54 percent — want the Supreme Court to invalidate the provision. Based on the poll of 1,206 adults, only 17 percent of Americans would like to see the individual mandate upheld.
Another interesting finding from the survey is that a majority of Americans also believe that the Supreme Court will strike down the mandate. In other words, according to this poll, a majority of Americans will be surprised and disappointed if the individual mandate is upheld.
(LvWSJ)
Thanks very much to Randy for his post arguing that his “no commandeering of the people” theory could be the argument that addresses my different concerns and create a sound way to strike down the mandate. Like all of Randy’s work, it is engaging, interesting, and important. But of the different arguments Randy offers to invalidate the mandate, I find the “no commandeering of the people” argument the least persuasive. Here’s a run-down of why.
First, the “commandeering of the people” claim reads like a emanations-and-penumbras argument, in which we look to various bits and pieces of the constitution to try to assemble them into a brand-new principle to get to where we want to go. Maybe I’m too sensitive to constitutional claims that rely on implicit principles of the Third Amendment. But that kind of legal reasoning gives my Burkean instincts the heebie-jeebies. In my experience, the point of emanations-and-penumbras arguments is to present something new as if it were something old (but just not quite previously recognized). I get the move, but here it seems pretty clear that the argument is new. As Randy concedes, the existing doctrine is about commandeering the states, not about commandeering the people.
Even if this is to be recognized as a new constitutional principle, it’s not clear how it works. First, it’s not clear to me how saying you have to pay an extra fee if you don’t buy health insurance “commandeers” anything. True, it’s an incentive to do something. But it’s a relatively modest one, and strikes me as far short of the coercive take-over implied by the concept of commandeering. And If we say that this sort of modest incentive amounts to commandeering, then isn’t most of what the government does commandeering? For example, does the home mortgage deduction commandeer you to buy a house? And more obviously, doesn’t the draft commandeer you to join the military?
Randy introduces several limitations on the theory that lead him to conclude that the mandate is the first case of the relevant kind of commandeering, and therefore is the only legislation that needs to be invalidated. But his limitations strike me as rather arbitrary. First, Randy limits his proposal to “economic” commandeering. That presumably would deal with the draft cases. But if the Constitution is to be read to prohibit commandeering, isn’t economic commandeering the least offensive kind? A draft forcibly making someone go off to fight a war (and risk death in combat) seems exponentially more offensive than making someone pay a few hundred bucks through a lower tax refund if their income is above a certain amount. And isn’t the limitation to “economic” commandeering an odd fit with the tax power? Under Randy’s theory, as I understand it, it seems that Congress is actually perfectly free to engage in economic commandeering as long as it does so through something formally called a tax. If economic commandeering is to be recognized as a core constitutional prohibition, it seems surprising that it could be so easily done under the tax power.
Finally, there’s my Weschlerian neutral principles reaction. One of Randy’s selling points for the no-commandeering argument is that it could be adopted in a way that only strikes down the mandate. He writes: “In short, if a majority of justices have the will to invalidate the individual insurance mandate, they surely have the way.” Although potentially appealing to the Burkean instinct, from a Wechslerian perspective that’s a bug rather than feature. A novel argument that manages to only strike down the one law we don’t like is not based on an appeal to lasting principle. Instead it appeals to expedience; it gets us where we want to go. From a Weschlerian neutral principles perspective, I’d be much more drawn to a principle that has all sorts of results that we don’t like. The more we don’t like the results, the more we have an indication that we are adopting the principle because of its constitutional truth and not because we don’t like the Affordable Care Act.
Anyway, my apologies again for the long post. Randy’s ideas are rich and interesting as always, and even at this length i know I’m only scratching the surface.
Commenter Brandon, a frequent critic of my posts on the individual mandate, offers the following question tonight in a comment thread:
Orin,
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years). So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically, DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I?????? I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided. Thnx.- Brandon
I wasn’t planning to blog on this. But because Brandon asks so nicely, I thought I would respond.
Now that the mandate case has reached the Supreme Court, the case triggers conflicting instincts for me. On one hand, as I’ve said before, I’m a federalism guy. I think limits on federal power play a critical role in our federal system, and I think Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society. The Commerce Clause was never intended to give the federal government a general police power. It was meant to just allow the federal government to regulate interstate commerce. That part of me would cheer if the Supreme Court struck down the mandate.
On the other hand, I’m also a Burkean conservative stare decisis guy, and I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it’s surprisingly hard to do that, and that unprincipled or unstable lines don’t last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let’s imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court’s decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections. But if we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed and my reaction would be different.
That explains why I have posted a lot of “law professor hypotheticals” about the implications of the mandate challenge. The more I see the theory driving the challenge as workable and principled, the more I favor it. I can’t gauge how much the challenge triggers my Burkean objections without understanding exactly what it is and how it might work.
Now add another consideration. I also value the Supreme Court deciding cases independently of politics as much and often as possible. This is a sort of Wechslerian neutral principles idea that the Justices shouldn’t be political actors in robes. Horribly out of fashion in the faculty lounge, to be sure. But the neutral principles part of me is pretty dubious about the mandate challenge because the challenge seems so transparently political. The Affordable Care Act is President Obama’s signature legislative achievement. Everyone who opposes the constitutionality of the mandate just so happens to also oppose the mandate politically. And the most commonly-asserted constitutional argument against the mandate wasn’t even thought up until around just before the mandate was passed, only to be readily embraced by the same folks that tried to stop the legislation in Congress but failed.
The obvious political valence of the mandate challenge gives me a lot of pause, and it adds a significant complication in my view of what the Court should do. On one hand, it’s obvious that any decision striking down the President’s signature legislation would have enormous political ripple effects. Given that the theory behind the challenge was largely made up to stop the mandate, and it’s hard to imagine more than 5 votes to strike down the mandate, that would make the Supreme Court a political player in ways that dwarf recent examples. The narrative of the decision as deeply political would resonate with a lot of people. But my concerns go beyond that. Because I don’t like it when the Court’s decisions have an obvious political valence, I start to care about the vote count and the political resonance of the opinions. All other things being equal, I’d greatly prefer a vote line-up that didn’t break along the obvious 5-4 political lines, and that is written in ways that echo partisan concerns. A 5-4 conservative/liberal split written in ways that echo the political framing of the challenge (and for some might be) the Justices reflecting their politics. I would prefer a line-up with cross-party voting, and opinions with more lasting and long-term legal gravitas; something that tells us that there is more than just politics afoot here.
Where do these and other sometimes-competing concerns lead? In my case, they lead me to conclude that I can’t know what I would prefer the Supreme Court to do unless I know what the options are. I’m less concerned with whether the Court strikes down or upholds the mandate than how it does so. If I can dream about a perfect world, I would like to see a 9-0 decision that identifies a widely-shared neutral principle deeply rooted in precedent that also limits the scope of the federal government in a significant way, But that’s a pipe dream. To borrow from Donald Rumsfeld, you go into Court with the Justices and the precedents you have, not the Justices and the precedents you might want.
The realistic options therefore are much more confined. When I imagine the realistic options, I can imagine both a hypothetical majority opinion striking down the mandate that I would prefer to a hypothetical dissent upholding it and a hypothetical majority opinion upholding it that I would prefer to a hypothetical dissent striking it down. It depends on how the opinions are written, what they would say, and whether they would identify clear lasting principles outside of the short-term political environment of the present. For example, is a hypothetical decision upholding the mandate a 5-4 Breyer opinion that dismisses federalism, or is it a 8-1 Roberts opinion that recognizes the great value of federalism but concludes reluctantly in a Sutton-esque way that the lack of a principle and the weight of stare decisis dooms the challenge? Is a hypothetical decision striking down the mandate one that is easily circumvented by a future Congress and is easily construed as a one-time-only way to stop legislation most Republicans oppose, or is a deeper principle adopted?
Anyway, sorry for the long post, which I’m sure will leave a lot of readers unsatisfied and which still leaves a lot out. That’s part of the reason I wasn’t planning on posting about this. Hopefully at least some readers will find it interesting.
The brief is here, and it strikes me as significantly better than the briefs that DOJ was filing in the early mandate cases. In terms of atmospherics, it leads with a background of the health care industry to make clear that the industry as a whole is such a significant part of commerce, and it presents insurance as the “traditional” way to pay for health care. The argument section then leads with the Necessary and Proper clause. The word “Sutton” appears 14 times, and the word “Kavanaugh” appears 5 times. Just as a matter of litigation strategy, I agree that’s the best way to present it.
It will be interesting to see if Clement et. al. come up with anything new in their merits brief. If I were briefing it for the challengers, I would de-emphasize the formalistic activity/inactivity distinction and instead just focus on the overall extent of government power. That is, instead of focusing on any one aspect, I would focus on all of them together, and argue that the statute taken as a whole just goes too far in a federal system.
UPDATE: Commenter Jon Shields points out this interesting passage from the brief:
Respondents nonetheless attempt to subdivide the uninsured into cost-shifters (who they say can be regulated) and non-cost-shifters (who they say cannot be), contending that “many healthy individuals make a rational choice to self-insure and are fully capable of paying for the care they receive,” and that uninsured individuals are able to properly consider their “actuarial risk in self-financing (their) healthcare”…
The circumstances of this case well illustrate the flaws in respondents’ premises. At the outset of this litigation, respondent Mary Brown thought she had made a rational choice to forgo insurance: she said she did “not believe that the cost of health insurance coverage (was) a wise or acceptable use of (her) financial resources,” j.a. 141, apparently believing that she could pay her medical bills out of pocket. That belief proved incorrect. Ms. Brown and her husband recently filed a petition for bankruptcy, and they list among their liabilities thousands of dollars in unpaid medical bills, including bills from out-of-state providers. Those liabilities are uncompensated care that will ultimately be paid for by other market participants. As Congress found, Brown’s experience is hardly atypical. 42 u.s.c.a. 18091(a)(2)(g) (“62 percent of all personal bankruptcies are caused in part by medical expenses.”).
Ouch.
Some defenders of the Obama health insurance mandate try to scare off opponents by claiming that if the mandate were repealed, the result will be a system of socialized medicine. Presumably, conservatives and libertarians oppose the latter even more than former. Such claims may have led conservative commentator Paul Rahe to argue recently that the individual mandate is even worse than socialized medicine, or at least worse than government-provided health insurance. I think Rahe is wrong. But the more important point is that this is actually a false dichotomy: there are many alternative health care reforms that are more market-friendly than either the mandate or socialized medicine, whether the latter takes the form of government-provided health care (as in Britain) or “single payer” health insurance (as in Canada).
Even before Obama, health care was the most heavily regulated and subsidized industry in the United States, and there is plenty of room for free market reforms that can drive down costs by increasing competition. Some of the possible options are described in an important book by Cato Institute health care scholars Michael Tanner and Michael Cannon. They include breaking the connection between health insurance and employment created by government favoritism for employer-linked plans, and allowing individuals to purchase insurance across state lines, which would make insurance more portable and increase competition between insurance providers. As University of Chicago economist John Cochrane points out, there are also free market reforms that could alleviate the problem of coverage for preexisting conditions – the issue that is often cited as a justification for the mandate. And that’s just a small sample of the many available options. Many additional proposals are covered at John Goodman’s blog, among other places (Goodman is one of the best-known free market-oriented health care economists).
Obviously, the range of policies that are politically feasible in the near future is a lot narrower than the range of theoretically possible options. Even so, at least some pro-market reforms are likely to be as much or more politically viable as socialized medicine. If liberals could not push the latter through when the left was riding high in 2009 and Democrats had overwhelming majorities in both houses of Congress, it is highly unlikely that they will enact it at any time in the foreseeable future.
To the extent that socialized medicine is politically feasible, it may well become more rather than less so as a result of the individual mandate. Under the mandate, government must define the level of coverage that everyone is required to buy, including defining which medical conditions and treatments are included. This opens the door for constant lobbying by health care providers and other interest groups to ensure that their particular treatments are covered by the mandate. As more and more is mandated, the price of insurance goes up, and so too will political pressure for increasing government subsidies and government-provided insurance. Insurance costs have in fact gone up as a result of the Massachusetts “Romneycare” mandate that is the model for the federal reform.
Predicting the political future is a difficult business, so it’s possible that my expectations are wrong. At this point, however, it seems at least as likely that the continuation of the mandate will make socialized medicine more probable than that the opposite will happen.
Finally, if getting rid of the individual mandate really will bring on the advent of socialized medicine, why don’t any liberal activists and health care experts support it? There are plenty of left-wingers who would prefer socialized medicine to the Obama plan. If they think that the repeal of the latter would lead to the former, then they should form a coalition with Obamacare opponents on the right and work to get it repealed. A small number of liberals are in fact willing to get rid of the mandate, most notably Howard Dean. But even Dean doesn’t claim that abolition of the mandate would lead to socialized medicine. He merely thinks that the mandate is a political liability for Democrats and that the Obama plan can work just as well without it. The extreme rarity of left-wing support for repeal of the mandate suggests that few liberals genuinely believe that getting rid of it is likely to lead to socialized medicine.
Obviously, none of this is directly relevant to the constitutional arguments against the mandate. It is logically possible that the mandate is both unconstitutional and the only politically feasible alternative to socialized medicine. But that scenario seems highly unlikely. The spectre of socialized medicine should not deter free market advocates from either pursuing the constitutional case against the mandate or trying to repeal it politically.
UPDATE: I should acknowledge co-blogger Jonathan Adler’s September post making a similar argument.
John Goodman in the WSJ: ” There is nothing that can be achieved with a mandate that can’t be better achieved by a carefully designed system of tax subsidies.” Goodman’s argument is strengthened by the fact that the mandate, as structured in the PPACA, would increase coverage, but come nowhere close to achieving universal coverage. The mandate will increase coverage and reduce premiums on the margin, but the same could be said of many other policy options as well.
As I’ve noted before, whether a mandate is “necessary” to increase coverage and control costs absent a single-payer system is a separate question from whether it is a “necessary and proper” means of carrying into execution the federal government’s enumerated powers.
Everyone knew the Court would grant cert in the health care cases; the surprising part is that the Court is allowing a whopping 5.5 hours of oral argument for the various issues. Lyle Denniston explains:
The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled.
The Court’s decision to give these cases so much oral argument time should be welcomed by the challengers to the statute, and should make the Justice Department a bit nervous. From its inception, the challenge to the mandate has been a request for the Justices to do something extraordinary; I believe Randy Barnett initially analogized the prospects of the Court striking down the statute as akin to seeking another Bush v. Gore. The Court’s decision to give these issue so much oral argument time suggests to me that at least some of the Justices see these cases as extraordinary, likely a necessary step if the Court is to decide the cases in an extraordinary way. I still think it’s quite unlikely that the Court will strike down the statute, but the award of so much oral argument time should be a hopeful sign for the challengers.
The Supreme Court has granted certiorari in several of the health care cases, granting the Florida’s, NFIB’s and the federal government’s petitions, including consideration of the Tax Injunction Act issue, and granting extended argument time. I suspect SCOTUSBlog will have a full report shortly.
NOTE: Here is SCOTUSBlog’s health care litigation page, and here is the ACA Litigation blog which is also a useful resource on the litigation.
It hasn’t changed since I wrote the following almost a year ago: What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.
The modern Supreme Court is reluctant to directly overrule precedents, especially well-entrenched precedents, but is not at all reluctant to distinguish precedents, even when the distinctions in question are quite strained. I could present many examples, but just consider, for example, how Boy Scouts of America v. Dole turned out not to be governed by Roberts v. United States Jaycees; the Court distinguished Matthews v. Eldridge from Goldberg v. Kelly; or how the Court has gone back and forth between relying on Mulligan and Quirin in detainee cases without overruling either one of them, or really explaining how they don’t contradict each other.
So now that the opponents of the individual mandate have manged to make arguments that pass the laugh test, the Supreme Court’s ultimate decision will involve such factors as: (1) How popular will the individual mandate, and health care reform more generally, be when the Court takes up the issue?; (2) How popular will President Obama be at that time? (3) The Republicans on the Court will undoubtedly be less likely to support a law passed with only Democratic support; (4) Will Justice Kennedy be more in the mood to be susceptible to the “Greenhouse Effect,” or to cement his conservative credentials, which in part will depend on, “How close to retirement is he?” (5) Does Justice Scalia think that invalidating the individual mandate will somehow hurt the cause of ultimately overruling Roe v. Wade, something that I think is always on Justice Scalia’s mind? (6) Will the Republican House and the expanded Republican minority in the Senate show in any way that they take federalism and limited national government seriously, the way the Contract with America undoubtedly made Lopez more viable, and the Big Government conservatism of the Bush Administration helped lead to Raich? (7) Will the Court have other issues before it on which the conservative Justices would rather spend their political capital? And so on… UPDATE: [8] I left out a crucial factor: If the liberals on the Court, like the dissenters in Lopez, are unable to articular a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.
Looking at these factors a year later: (1) The mandate is unpopular, and less popular than ever; (2) Ditto for the president; (3) no change; (4) Kennedy seems to have no intention of retiring; (5) there has been a conservative backlash over Scalia’s decidedly non-originalist opinions in Raich and McDonald, which has eroded Scalia’s standing among Federalist types in favor of Thomas as the new standard-bearer. I can’t imagine that Scalia is completely oblivious to this, or to the fact that a vote upholding the mandate will erode his standing further, but the Roe v. Wade question lingers; (6) the Republicans have not shown that they take federalism at all seriously; (7) there are no other issues of similar magnitude before the Court; and (8) this remains to be seen.
Also, consider this line: “Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.” A conscientious circuit court judge, particularly one who, like Judge Silberman, has a lot invested in his reputation as an advocate of judicial restraint, could quite plausibly find that the best interpretation of precedent supports the constitutionality of the individual mandate. But when the case gets to the Supremes, the only relevant question is whether prior precedent clearly dictates upholding the mandate. I think the answer to that has been shown to be “no,” given all the opinions going the other way.
In short, I think the factors I enumerate are far more likely to affect the Court’s ultimate decision than whether Judge Sutton or Judge Silberman voted to uphold the mandate. I’m still not terribly optimistic that the mandate will be invalidated, but not because of the lower court opinions.
UPDATE: A clarification: I think likely all the conservative Justices on the Court think that if they were deciding things as an initial matter, without any relevant precedents and no political constraints on the Court, that the mandate would be unconstitutional as beyond Congress’s power under the Commerce Clause. The constraints of both politics (in the broad sense of the word, including the Court being wary of preserving its authority and so on) and judicial culture (respect for precedent) are what would prevent the Court from invalidating the mandate. So I’m not arguing that the majority would invalidate the law because it suits them “politically.” I suspect that they all really think the law is unconstitutional but because of precedent and politics they need the right political environment to say so. If, for example, both the law and Obama were polling at 70%+, and the law had been passed with significant Republican support, and some of the leading Republican candidates supported the law, the chances that the Court would invalidate it would be approximately zero, regardless of the Justices’ views of its constitutionality. Maybe Thomas would dissent.
Judge Kavanaugh wrote a separate opinion in the DC Circuit’s mandate case that many readers will overlook: It’s based on the tax code, and the opinion itself acknowledges that its analysis is dense and difficult. (“The Tax Code is never a walk in the park. . . . I caution the reader that some of the following is not for the faint of heart.”) At the same time, Kavanaugh’s opinion closes with a very interesting prudential case for not deciding the merits of the mandate, and instead deciding the case on Anti-Injunctive Act grounds (see starting at page 51). Among them, Kavanaugh argues that if the Court doesn’t decide the issue now, it may never have to decide the issue because the statute could be easily amended to make the mandate easily constitutional under the taxing power. It’s an interesting read, and one that I suspect may get some attention when the case reaches the Supreme Court.
As an aside, it’s interesting that the circuit court decisions on the mandate have included three opinions by leading lights of the Federalist Society — Judges Silberman, Sutton, and Kavanaugh — and that none of them voted to strike down the mandate. These three judges are hugely influential in the conservative legal community, and the conservative Justices and clerks on the Court watch their work closely. Although a split is a split, and the Court is extremely likely to take a mandate case, the absence of a vote to strike down the mandate among the opinions from Judges Silberman, Sutton, and Kavanaugh can’t be welcome by mandate opponents.
I was going to write a more detailed post on the recent DC Circuit decision upholding the individual mandate. However, co-blogger Randy Barnett has already said much of what I would have wanted to say.
Like Randy, I am skeptical that Justices Kennedy or Scalia will be willing to endorse the D.C. Circuit’s conclusion that there are no limits to Congress’ power to impose mandates under the Commerce Clause. Both of these justices have emphasized the need to enforce limits on the scope of federal power. If the Court does uphold the individual mandate, it will be on the basis of one or more of the various arguments claiming that health care is a special case.
Here are two additional points that go a little beyond Randy’s analysis.
First, Judge Silberman’s majority opinion is wrong to suggest that a long line of Supreme Court decisions that defined the scope of Congress’ Commerce Clause power in terms of “activity” or “economic” activity “were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question” of whether economic activity could be regulated. Several of those decisions clearly use the term “activity” as part of a doctrinal test, not merely a description of facts. In Gonzales v. Raich, the Court noted that the statutes invalidated in Lopez and Morrison were ruled unconstitutional because they “did not regulate any economic activity,” whereas the law in Raich was sustained because it did regulate “quintessentially economic” activity. That certainly looks like more than just “description” to me. Even more importantly, in several cases the Supreme Court could have saved itself a lot of analytical trouble if it could uphold Commerce Clause statutes simply by claiming that they regulate inactivity with economic effects. For example, In Katzenbach v. McClung, the Court ruled that Congress could forbid racial discrimination restaurant that served almost exclusively local customers on the somewhat circuitous basis that the restaurant purchased some of its food supplies out of state, and its discrimination against African-Americans affected the volume of those purchases. If inactivity that affects interstate commerce were enough, the Court could have avoided these gymnastics and simply said that McClung’s restaurant had had an impact on interstate commerce because he could instead have established some other business that was more connected to interstate commerce than the restaurant itself was.
Second, it is interesting that Judge Harry Edwards, in his concurring opinion, seems uncomfortable with Judge Silberman’s conclusion that Congress has virtually unlimited power to impose mandates. He emphasizes that “Congress’s authority to legislate under the Commerce Clause is not without limits. If nothing else, there are boundaries that emanate from the Necessary and Proper Clause… which serve as principled limitations on Congress’s authority under the Commerce Clause.”
Edwards is right to stress the need for limits on the Commerce power. But it is somewhat strange to look to the Necessary and Proper Clause for them. After all, the whole point of the Necessary and Proper Clause is to give Congress additional power that goes beyond what it has under its other enumerated powers by themselves. Edwards claims that his view is supported by Justice Scalia’s concurring opinion in Raich. But Scalia’s key argument in that case was precisely that the Necessary and Proper Clause could be used to reach activity that Congress could not regulate under “the Commerce Clause alone.” Unlike the majority opinion, Scalia did not believe that the Commerce Clause by itself gave Congress the power to forbid the possession of medical marijuana that had never crossed state lines or been sold in any market.
UPDATE: In criticizing Judge Silberman’s interpretation of the precedents on “economic activity,” I don’t mean to suggest that those cases definitively ruled that Congress cannot use the Commerce power to regulate inactivity. They did not do that. At the same time, “activity” did define the limit of what the Court ruled that Congress could regulate in those cases. Permitting regulation of inactivity would require a lower court to go farther than the Supreme Court has gone.
UPDATE #2: I have revised this post to correct a few grammatical and phrasing errors.
I thought readers might be interested in the key passages from the DC Circuit’s majority opinion, authored by Judge Silberman, upholding the individual mandate under the Commerce Clause:
The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.
The Framers, in using the term “commerce among the states,” obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction. See Lopez, 514 U.S. at 553-61; id. at 568-75 (Kennedy, J., concurring). Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. See United States v. Morrison, 529 U.S. 598, 610, 615-19 (2000); Lopez, 514 U.S. at 558-61, 566-67. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior–if only decisions whether or not to purchase health care insurance or to seek medical care–that does substantially affect interstate commerce.
To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word “activity” to describe behavior that was either regarded as within or without Congress’s authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether “inactivity” can also be regulated. See Florida, 648 F.3d at 1286. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .
Indeed, were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. Thomas More, 651 F.3d at 560-61 (Sutton, J., concurring). The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between “indirect” and “direct” effects on interstate commerce–because they were similarly unworkable. See Wickard, 317 U.S. at 119-20; see also Lopez, 514 U.S. at 569-71 (Kennedy, J., concurring).
Appellants have sought to avoid this logic by asserting that even if one could be obliged to buy insurance when one sought medical care, one cannot be obliged to keep it. Although that argument, as we have noted, avoids the facial challenge objection, it strikes us as rather unpersuasive on the merits. Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services–as rather useless as that would be–is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.
Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming Wickard doesn’t encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds. But appellants’ proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. Florida, 648 F.3d at 1285-88. Moreover, the novelty cuts another way. We are obliged–and this might well be our most important consideration–to presume that acts of Congress are constitutional. Morrison, 529 U.S. at 607. Appellants have not made a clear showing to the contrary.
Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause.
Judge Silberman’s view is pretty much what I’ve been arguing since the mandate challenges were first filed, so it’s no surprise that I find this a persuasive reading of existing Supreme Court precedent. Of course, the Supreme Court is highly likely to review this issue soon, and the Justices are not bound by the implications of their prior precedents — or even the precedents themselves.
At Balkinization, Gerard Magliocca raises a possible slippery slope argument against striking down the individual health insurance mandate (this argument was, I think, first raised in an article by Mark Hall):
The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. Many people are unfamiliar with the relevant Commerce Clause cases, but everyone seems to know about the broccoli hypothetical.
The hypothetical on the other side of this litigation, though, is just as powerful. Suppose that a dangerous epidemic breaks out that reduces interstate commerce by curtailing travel and other interactions for fear of contagion. A private company develops an effective vaccine that many people refuse to buy. Is Congress prohibited from ordering everyone in the country to buy the vaccine under the proposed activity/inactivity distinction?
It so happens that I address the very issue Gerard raises in a forthcoming article on slippery slopes and the individual mandate. I have two answers to his question. First, Congress can still pass a vaccination requirement that applies to everyone who crosses state lines. Crossing state lines is clearly an “activity” and an interstate activity to boot. Second, as a practical matter, state governments would have very strong political incentives to enact vaccination laws in the face of a “dangerous epidemic.”
Gerard anticipates my second point, and finds it unsatisfying because it “sounds a lot like ‘This is a non-issue because Congress will never order you to buy broccoli.’ Either both responses are valid or neither is. One can’t be adequate and the other not.” Not so. The claim that a slippery slope is politically infeasible may be right in one scenario and wrong in the other because some policies are more politically viable than others. As I explain in this post, Congress has strong incentives to enact purchase mandates that benefit influential interest groups. The insurance mandate was itself adopted in part because of backing by the health insurance industry. By contrast, state governments are unlikely to sit on their heels in the face of a raging epidemic. Any state that does so is likely to lose business, and its politicians are likely to suffer retribution at the polls. Even the most ignorant voters tend to notice a rampaging epidemic that the government has failed to control.
Obviously, state governments could do a poor job of addressing an epidemic even in spite of good incentives. But the same is true of Congress.
UPDATE: I have made a few, mostly stylistic, changes in this post.
UPDATE #2: It’s a fair point to suggest, as some commenters do, that under my logic, Congress could enact the individual insurance mandate by restricting it to people who cross state lines. I think that would be permissible under current Commerce Clause doctrine, even if it might not be under the text and original meaning. However, many people could still evade the mandate by avoiding interstate travel. Not everyone crosses state lines regularly. Moreover, a health insurance mandate tied to travel would seem weird to many people, which in turn would reduce its political feasibility (not so with a vaccination mandate tied to travel, since it’s easy to see that part of the purpose of such a mandate is to stop the spread of an epidemic across state lines). More generally, requiring mandates to be tied to “economic activity” of some sort reduces the risk of harmful mandates because mandates with “tie-ins” tend to disincentivize whatever activity they are tied to. The more onerous the mandate, the greater the disincentive. For example, a mandate tied to employment will tend to increase unemployment. Congress will not always be willing to pay that price.
That’s the question posed today over at Scotusblog. It’s the premiere of the Scotusblog Community, which aims to encourage discussions by Scotusblog readers. To start the ball rolling, Scotusblog solicited short comments (up to 2 paragraphs) from Erwin Chemerinsky, Dawn Johnsen, Ilya Shapiro, Stephen Presser, Adam Winkler, and me, among others.
My answer to what the Supreme Court should do is:
The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: “commerce” means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are “health laws of every description.” The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are “commerce.”
Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally “proper” to force citizens to spend their money on a government-favored Big Insurance oligopoly.
The rationale for the above can be found in my articles Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online (forthcoming 2011)(with Gary Lawson); “Health Laws of Every Description”: John Marshall’s Ruling on a Federal Health Care Law, 12 Engage 49 (June 2011) (with Robert G. Natelson); Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Michigan Law Review First Impressions 55 (2010) (with Natelson); and Health insurance is not ‘commerce’: A single erroneous Supreme Court precedent from 1944, South-Eastern Underwriters, should be overturned, National Law Journal, March 28, 2011 (with Natelson) (available on Lexix/Nexis).
Since Scotusblog is trying to get people to comment on its own website, I’m not opening comments on this post, and I encourage you to share you thoughts over at Scotusblug.
The Washington Post‘s Sarah Kliff offers three potential reasons the Department of Justice opted against seeking en banc review of the U.S. Court of Appeals for the Eleventh Circuit’s decision holding the individual mandate unconstitutional.
- The Obama administration will definitely handle the case.
- The review might not have been granted— or gone against the administration.
- The move shows confidence.
Michael Dorf has an interesting Verdict column arguing that the mandate case is very important politically, but much less important than you might think as a matter of constitutional law.
So reports the ACA Litigation blog. I’m quite surprised, as normally DOJ would delay a case like this as long as possible– and try to eliminate the split — with a petition for rehearing. So it looks like it’s on to the Supreme Court, with a DOJ-filed petition for certiorari coming soon. That would make it extremely likely the Supreme Court will take the case, and presumably the Court would be able to hear the case this Term and decide the case by late June 2012.
There are lots of possible reasons why the Administration might have decided not to seek rehearing. Without personal knowledge of which mattered, I don’t think we can do more than just speculate as to the reason or mix of reasons. Perhaps they simply concluded that the prospects of success in a petition for rehearing were remote, and that the 11th Circuit judges who might write opinions respecting the denial of rehearing would hurt the government more than help it. Perhaps they figured that the Eleventh Circuit was the best vehicle for review, so it was better to petition from that case. Perhaps they just figured that it’s in everyone’s interests to resolve a facial challenge sooner rather than later. Perhaps the Obama Administration wanted the case decided in the middle of the Presidential campaign, for reasons of either electoral or litigation strategy. Alternatively, perhaps the recent oral argument in the DC Circuit convinced them that Silberman and Kavanaugh were likely to vote to strike down the mandate and write a better opinion doing so than had the 11th Circuit, making review of the 11th Circuit’s decision more desirable for the government’s side. Or perhaps they shook up the Magic 8 ball, asked if they should petition for rehearing, and it came up, “my reply is no.” It’s hard to say.
Meanwhile, the folks that should be most excited about DOJ’s decision are the new set of Supreme Court law clerks. Their Term just got a lot more interesting.
Politico reports that the Department of Justice has until Monday to decide whether to file a petition for en banc review in Florida v. HHS, the successful challenge to the constitutionality of the individual mandate in the U.S. Court of Appeals for the Eleventh Circuit. If the Department of Justice does file such a petition, this will significantly decrease the likelihood that the Supreme Court will hear a challenge to the individual mandate in the 2011-12 term. For a variety of reasons, including the range of issues presented and the participation of a majority of the states, the Eleventh Circuit case remains the most likely vehicle for eventual Supreme Court review. Therefore, whether the Department of Justice seeks en banc reconsideration in the Eleventh Circuit or certiorari in the Supreme Court is likely to control the timing of eventual Supreme Court review.
Relatedly, according to the ACA Litigation Blog, the Justice Department’s deadline for filing a response to the petition for certiorari in Thomas More Law Center v. Obama, the case in which the U.S. Court of Appeals for the Sixth Circuit upheld the mandate, is Wednesday, September 28.
