The Volokh Conspiracy

Now that Eugene has given me the electronic keys to this Conspiracy, I could not resist getting involved in the now-legendary discussion of the ACA…

There is a serious inconsistency between the government’s arguments for the mandate and for the Medicaid expansion. In a nutshell, these arguments make opposite assumptions about the effect of financial duress on states’ ability to execute their policy preferences. Defending the mandate, the government says states are individually incompetent to regulate insurance, because the first state to adopt generous rules would be inundated with the sick, and forced to abandon its policy. This is a basic race to the bottom story and has been around in Commerce Clause cases since the New Deal.

Crucially, the argument takes financial realities as dispositive: states cannot realistically choose to experiment with medical insurance individually because it would be ruinous. The economic effects mean that states do not really have the power to choose individual regulatory regimes.

Yet turning to the Spending power, the government ask us to believe that states can realistically turn down federal medicaid funds, though it would be at least as ruinous if not more. Either the prospect of massive losses makes a states ability to pursue a certain course illusory or it does not. 

Incidentally, these two cases are not equal in that in that in the former, the ruinous consequences are a result of the market, in the latter a result of calculated federal efforts to make the offer unrefusable.

National Review has posted a symposium on this week’s ACA oral arguments, with contributions by various conservative and libertarian pundits, policy experts, and legal scholars. The symposium includes short assessments of the argument by co-blogger Jonathan Adler and myself. Here’s an excerpt from my piece:

This week’s Supreme Court oral argument did not go well for the individual mandate. The conservative justices zeroed in on the biggest weakness in the pro-mandate case: the fact that the federal government’s rationales for the law would also justify virtually any other federal mandate, including laws forcing people to purchase broccoli, cars, or just about any other product. This undercuts the principle that the Constitution sets limits to the scope of federal power….

It is still far from certain that the plaintiffs will prevail. The federal government has numerous arguments intended to prove that this mandate is unique. If it can persuade just one of the conservative justices to accept just one of these theories, it can still win, since it is certain to get the votes of the four liberals. Nonetheless, the mandate is looking a lot shakier than many expected.

With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it’s pretty clear under long-established doctrine that the Commerce power can be used to address “social problems that do not involve markets.” E.g., Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) (“What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?”). Personally, I thought that Chief Justice Fuller’s dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.

Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.

If there’s a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.

3. “Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not.” This is really a policy argument for Obamacare. Hypothesizing that it’s a good policy argument, it’s not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.

Moreover, the policy argument is wrong. It’s true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the  legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It’s not a collective action problem; it’s just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.

Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.

4. The Tax Power. “[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.”

Let’s put aside the fact that, however ingenious the progressive professoriate’s  tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.

Presuming that Siegel’s tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the “tax” at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the “tax” increase each month that the individual refuses to do what Congress mandates.

5. Liberty. “The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount.” Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person’s substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress’s powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress’s commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.

Finally, I certainly agree with Professor Siegel that the Fifth Amendment’s liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right “not to eat the minimum quantity of nutritious food which government scientists have  determined is essential for good health” is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I’m not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.

Adam Teicholz of the Atlantic claims that the Volokh Conspiracy deserves much of the credit or blame for the possible upcoming defeat of the individual mandate in the Supreme Court.:

Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At Volokh, Barnett and other libertarian academics have been debating and refining their arguments against the mandate since before the ACA was signed. At the beginning, law professor Jonathan Adler fleshed out the approach that came to typify the elite conservative response for the first months of the public debate: the Founders never intended for the Constitution to permit such broad federal power, but given New Deal-era precedent, the mandate, if it became law, would pass muster. Things changed on Volokh around the time that it became clear that an insurance mandate would be part of whichever health care reform package passed into law.

One congressional floor speech seemed to mark a tonal turning point for Volokh, the moment its writers realized their power to shape debate. On December 22, 2009, Democratic Senator Max Baucus quoted the post by Jonathan Adler mentioned above. Adler clearly resented that Baucus had taken his lawyerly evaluation of the case, stripped out the interesting part (that a pure reading of the Constitution weighs against the mandate, even if precedent weighs in its favor), and used it in a political context — and he responded on Volokh directly to the senator. If the world was going to use Volokh as a political tool, then he could, too. There followed months of posts by various Volokh bloggers, alongside increasingly sophisticated legal arguments, about just how reasonable, how comfortably within bounds the legal arguments against the mandate were. By the following year, a district court judge had cited Barnett in his opinion striking down health care reform, and Barnett himself had left behind his March 2010 conclusion that the Supreme Court would need to risk its credibility in a politically charged case, Bush v. Gore-style, to overturn the mandate.

I am flattered by this estimate of our influence. But there are a number of flaws in Teicholz’ account. First and foremost, it is simply not true that we all thought that the individual mandate would pass muster under current precedent until the exchange between Jonathan Adler and Senator Baucus led us to “realize [our] power to shape debate.”

We knew we had that “power” long before the Adler-Baucus debate. Several of us had influenced public debate through blogging previously. Eugene Volokh has had a lot of influence on public debate over free speech, gun rights, and other issues. Todd Zywicki’s excellent blogging about bankruptcy issues has been extremely influential for years. My own blogging about post-Kelo eminent domain reform and property rights has impacted debate over those issues, and led to invitations to testify before the U.S. Senate Judiciary Committee and other government bodies.

Randy Barnett believed that the individual mandate could not be justified under current precedent all along, which I think was also true of David Kopel. As for me, I always believed that the mandate was unconstitutional, but initially thought that it could be justified under the Supreme Court’s decision in Gonzales v. Raich (which I have long argued was wrongly decided). What changed my mind was a close re-reading of Raich with the individual mandate case specifically in mind. I obviously can’t speak for Jonathan Adler. But I suspect that the evolution of his views was similar.

Randy and I also initially believed that striking down the mandate would be more politically difficult for the Supreme Court than is likely actually to be the case. That’s because we (or at least I) failed to foresee that the mandate and the health care bill as a whole would remain so unpopular for so long. I’d like to think that some of that unpopularity was the result of our efforts. But the lion’s share was surely caused by other factors. If we really had the power to swing public opinion massively, I would long since have persuaded the public to oppose the War on Drugs and support legalization of organ sales.

Where we did have some influence is in debunking the myth that the constitutionality of the mandate was a no-brainer backed by an overwhelming consensus of expert opinion. But we could not have done that were we not 1) recognized academic experts on these issues ourselves, and 2) able to point to other well-known experts who also believed the mandate to be unconstitutional, many of them not VC-ers. The latter include such prominent constitutional law scholars as Richard Epstein, Steve Calabresi, Steve Presser, and Gary Lawson.

Randy, of course, played an especially vital role by developing crucial legal arguments that had a huge influence. But those arguments would have been of little avail if they could not persuade judges and other experts, as well as lay public opinion. The world is full of laws that are widely disliked, but have no chance of getting invalidated by a court because the arguments against them have no credibility with legal professionals.

Teichholz also errs in thinking that our arguments against the mandate fell by the wayside when the case reached the Supreme Court and the anti-mandate lawyers started using “better-trodden” arguments – implying that our points were mainly for the purpose of influencing the lay public. In reality, Tuesday’s oral argument overwhelmingly focused on the point that I and others here have been pushing for a long time: that the government’s rationales for the mandate lacks any logical limitations, and could therefore justify virtually any mandate of any kind. Several of the justices also suggested that the mandate is constitutionally dubious because it does not regulate any preexisting economic activity – the main argument that Randy has been emphasizing since 2009. Some of Justice Scalia’s questions on the Necessary and Proper Clause almost exactly mirrored the central point of an amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars (though I reiterate that I have no way of knowing whether he got the idea from my brief).

Finally, Teicholz writes as if it is somehow unusual for lawyers to be “waging this battle not only in the courtroom but in the court of public opinion,” suggesting that Randy’s dual role as lawyer and public advocate is particularly “unusual for an appellate lawyer.” In reality, two-track strategies in important constitutional cases are far from new. The abolitionist movement arguably pioneered this kind of approach in the 1840s and 1850s when they challenged the Fugitive Slave Act and other pro-slavery laws. The NAACP pursued a similar strategy since the early 1900s, as have feminists, environmentalists, the gay rights movement, gun rights advocates, property rights supporters and many others. Randy’s role is also far from “unusual” among lawyers involved in high-profile constitutional cases of this kind. As far back as the 1940s, Thurgood Marshall was both the lead appellate litigator for the cause of black civil rights and a major public spokesman for that cause. These historical precedents (many of them by left-wing movements) are what led me to suggest back in March 2010 that a similar strategy could work in this case.

What happened here is just one of many examples of conservatives and libertarians adapting strategies that were mostly pioneered by the political left. Such borrowing from the left is at the heart of much of what conservative and libertarian activists for legal change have achieved over the last thirty years. Ironically, some on the left don’t recognize the influence of their own tactics when they are adopted by adversaries. Perhaps they should recall that imitation is the sincerest form of flattery.

Shorter Dalhia Lithwick: The mandate must be constitutional because it’s compassionate to care about others.

Less short Dalhia Lithwick: The mandate must be constitutional because it’s about the freedom to have the government make sure we take care of each other.

Lithwick’s column makes the common mistake of evaluating a measure’s constitutionality based upon the desirability of it s purpose.  Yet as Paul Clement noted in yesterday’s oral argument (and we’ve noted repeatedly), there are many other ways of ensuring that those in need are able to obtain medical care and even of encouraging more Americans to obtain health insurance.  Lithwick argues opposition to the mandate is grounded in a “dark vision” of freedom circa 1804, ignoring the legions of public policy measures adopted since that expand the social safety net without the imposition of PPACA-style mandates.

Throughout American history when we, as a people, have decided that it is important to help those in need we have relied upon the power to tax and spend for the “general welfare.”  Rather than impose upon individual Americans an obligation to act directly on behalf of others (or even themselves) we have raised monies that can be devoted to charitable and risk-management purposes and created financial incentives for charitable behavior.  The federal government could have done that here, either by further expanding Medicare and Medicaid, subsidizing insurance for those in need, or raising taxes on everyone and offsetting the increase with deductions for insurance.  In short, there are many constitutional ways for the government to demonstrate  ”compassion” without a mandate.  Yet Lithwick and others continue to insist that if their ends are pure, the means adopted must be constitutional.

If I wanted to be snarky, I’d also point out that it’s easy to be compassionate with other people’s money, and progressives should be careful before accusing those who oppose the mandate or other redistributionist policies as hard-hearted neanderthals.  After all, those on the right tend to donate a greater proportion of their own incomes  to charitable purposes than those on the left.

I’ve now made it through the full transcript of this morning’s argument. Here are four thoughts:

1) This was a huge day for the challengers to the mandate. The challengers have an uphill battle because they need to sweep all four of the Republican nominees who are potentially in play — Roberts, Alito, Scalia, and Kennedy. Based on today’s argument, it looks like all four of those Justices accepted the basic framing of the case offered by the challengers to the mandate. In particular, they all seem to accept that a legal requirement of action is quite different from a legal requirement regulating action, and that therefore the expansive Commerce Clause precedents like Raich did not apply to this case. That was the key move Randy Barnett introduced, and the four key Justices the challengers needed seemed to accept it. Just as a matter of precedent, that doesn’t seem to me consistent with Wickard v. Filburn, which stated that “[t]he stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” But putting aside precedent, the four key Justices all appeared to accept Randy’s basic framing. That was an enormous accomplishment for the challengers.

2) Based on today’s argument, I think it’s a toss-up as to which side will win. My sense is that Scalia is very clearly against the mandate, and Alito seemed to lean that way. Roberts also seemed more on the anti-mandate side than the pro-mandate side. It’s a cliche, but the key vote seems to be Justice Kennedy. As my friend and fellow former Kennedy clerk Steve Engel told the Wall Street Journal today, “It’s entirely possible he doesn’t know yet which way he’s going to go.” And yet assuming the Justices feel bound to the usual practice of finishing up the Term’s opinions by late June, there isn’t much time. These opinions are hugely important and yet will have to be written very quickly, which doesn’t bode well for their likely quality.

3) If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.

4) Purely from the perspective of a legal nerd, what fun to live in such interesting times. Those of us who follow the Supreme Court and teach or write in areas of public law are always dependent on what the Court does. If the Court does boring and expected things, then following the Court can be a bit routine. But this Term the Court has been pretty darn exciting to watch. Whatever you think of the umpire, the game sure is entertaining.

Yesterday, I pointed out that even many of the liberal Supreme Court justices were skeptical of arguments that the individual mandate qualifies as a tax under the Anti-Injunction Act, and suggested that this was not a good sign for the federal government’s claim that the mandate is a tax authorized by the Tax Clause of the Constitution.

Today’s oral argument directly considered the constitutional tax issue, and at least three of the four liberal justices – Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor – remain skeptical. Sotomayor suggested that the government’s Tax Clause argument is flawed because it has no “limiting principle.” Ginsburg again contended that the mandate is not a tax because it isn’t a “revenue-raising” measure. And Kagan pressed the Solicitor General on why it should be considered “irrelevant” that “Congress determinedly said, this is not a tax.” Needless to say, the conservative justices were no more supportive of the federal government’s Tax Clause claim than the liberals.

I don’t know who is going to win on the Commerce Clause and Necessary and Proper Clause questions. The plaintiffs’ position is looking pretty good. Still, I would not be surprised if the federal government managed to pull it out. But I am now quite confident that the feds are not going to prevail on the Tax Clause.

If Kagan and Sotomayor do end up concluding that the mandate is not a tax, that will be consistent with the views of the president who appointed them.

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
not do?

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.

Today’s Supreme Court oral argument transcript suggests that many of the justices, including at least three of the liberals, are skeptical of claims that the individual mandate is a tax. This is important not only for today’s argument about the applicability of the Anti-Injunction Act (which probably does not apply if the mandate penalty is not a tax), but to tomorrow’s argument about the constitutionality of the mandate. The federal government has argued that the mandate is constitutional because it is an exercise of Congress’ power under the Tax Clause. Lower courts have almost uniformly rejected this constitutional tax argument, and today’s questioning suggests that the Supreme Court is unlikely to accept it either.

Justice Stephen Breyer suggested that the mandate is not a tax because “Congress has nowhere used the word “‘tax.’” Justice Ginsburg noted that the mandate may not be a tax because it isn’t a “revenue-raising measure,” and because the monetary penalty is separable from the mandate itself. Justice Sotomayor also expressed doubts about whether the mandate is a tax, as did several for the conservative justices. As far as I can tell, none of the justices seemed to support the argument that the mandate is a tax.

Thus, today’s events do not bode well for the federal government’s constitutional tax argument. However, there are two caveats to this conjecture. First, the justices sometimes ask questions for rhetorical effect or play devil’s advocate. I don’t think they are doing so here, but obviously I can’t be sure. Second, it is theoretically possible that the constitutional definition of what qualifies as a “tax” is broader than the AIA definition. This is not the usual view of the matter. Indeed, the one lower court that ruled that the AIA applies to this case did so precisely because they thought that the AIA’s definition of “tax” is broader than the Constitution’s. However, it’s not completely impossible that the Court will reach the exact opposite conclusion, and the Solicitor General actually argued for such an approach today. However, there is no indication that the justices are leaning in that direction, or that any of them believe that the constitutional definition of a tax is broader than the AIA definition.

Even if the federal government loses on the tax argument, they could still win on the Commerce Clause or the Necessary and Proper Clause. The latter is probably their strongest point. Still, it’s interesting that the tax argument – which has attained great popularity among academic supporters of the mandate – has been overwhelmingly repudiated by the courts, including several judges who voted to uphold the law on other grounds. And it looks like the Supreme Court may well go the same as the lower courts on this issue.

The CNN website has just posted a column I wrote on the individual mandate case. Here’s an excerpt:

This week, the U.S. Supreme Court considers the case challenging the Obama administration health care plan’s requirement that most Americans purchase a government-approved health insurance plan by 2014. The court should rule that this individual mandate is unconstitutional. To do otherwise would give Congress almost unlimited power….

If Congress could use [the commerce] clause to regulate mere failure to buy a product on the grounds that such inaction has an economic effect, there would be no structural limits to its power. Any decision to do anything is necessarily a decision not to do something else that might have an economic effect. If I spend an hour sleeping, I thereby choose not to spend it working or shopping. As the lower court decision in this case explained, the government’s position “amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.”

Is Department of Health and Human Services v. Florida a replay of United States v. Lopez? I suggested as much in an October 2010 post, in which I wrote:

n both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported from an originalist perspective, but that Supreme Court doctrine hasn’t shown any particular sign of adopting as a a matter of constitutional law. In both cases, the commentary in favor of the limitation seems aimed at fostering a sense of the legitimacy of those limitations with the hope that this will make it more likely for the Supreme Court to adopt them. In both cases, most informed observers were skeptical (if not incredulous) at the idea that the Supreme Court would take that step– only a handful of people saw the invalidation of the Gun Free School Zones Act as a realistic possibility; most saw it as extremely unlikely. In both cases, many commenters are extremely passionate about what they believe the correct constitutional answer must be — with commenters seemingly lining up in the same way on the two issues. And in both cases, most informed commentators would expect the Supreme Court to side affirm federal power.

There are differences, of course. The debate over the Commerce Clause pre-Lopez was more for law geeks than the public: It concerned the likelihood the Court would affirm the limitations of the federal commerce power for the first time in over fifty years in a low-profile case few had heard of, let alone cared about, and it lacked the broad political movement that exists over the individual mandate. Yet then, as now, the litigation occurred at a time when limited government political arguments were on the rise and now, unlike before, serious academics and court watchers believe that, as a predictive matter, the constitutionality of the individual mandate is an “open question.” Nonetheless, I can’t avoid the sense of deja vu — but maybe that’s wishful thinking.

Since then, the debate over the constitutionality of the individual mandate has continued to follow the script. Prevailing elite opinion is dismissive of the arguments against the mandate, just as it was dismissive of the challenge to the GFSZA. Yet then, as now, defenders of the federal law have a difficult time reconciling their arguments with meaningful limits on federal power. Asked to identify something beyond the scope of the federal commerce power in Lopez, the Solicitor General came up empty. Asked to identify how the Supreme Court could uphold federal power to compel participation in commerce as a regulation in commerce, without green-lighting a near infinite power to command private activity the SG’s office has also had a difficult time identifying the class of activities subject to regulation. This is one reason the SG’s office has shifted its emphasis from “commerce” to what is “necessary and proper” and remains concerned about the “broccoli question.”

Whereas some academics and commentators protest the mandate presents an easy case, those who actually have to argue the case in court recognize the need to reaffirm limits on federal power, even as they approve of the individual mandate.  The difficulty in maintaining this position is one reason I have become  more skeptical of the mandate’s constitutionality over time.  (My initial posts expressing skepticism of the anti-mandate arguments are here and here.) Harvard’s Charles Fried may be comfortable proclaiming that Congress has the power to command all Americans to purchase broccoli or any other good or service, but he also felt Congress had the power to regulate the possession of guns in or near schools. Indeed, as the University of Pennsylvania’s Ted Ruger recently recounted, Fried did not even teach the commerce clause prior to Lopez, as he did not believe the clause was relevant anymore.  Many of those defending the mandate today felt much the same way, and have sought to minimize the importance of Lopez (and Morrison) ever since.  Yet the Fifth Circuit then, and the Eleventh Circuit now, took the admonition that ours is a government of limited and enumerated powers more seriously, and invalidated an unprecedented assertion of federal power as a step too far. Then, a majority of the Supreme Court followed suit. Will they now?

As I noted two years ago, the statutory provisions at issue in HHS v. Florida are far more consequential provision than was at issue in Lopez.  Few Americans had heard of the GFSZA, and even fewer had an opinion as to its constitutionality.  Does this mean the challenges will fail?  It is much easier for a court to invalidate a small piece of symbolic legislation than a major social reform.  And yet, the Court has, at times, been willing to cut wide swaths through the federal code or confront the political branches.  Dozens of statutory provisions were invalidated byINS v. Chadha, and the Court’s aggressive review of the poltiical branches’ wartime policy decisions in Boumediene were unprecedented, so it’s not as if the Court has not flexed its muscles in the recent past.

The GFSZA may have been obscure, but that also meant it was not unpopular.  If, as many believe, the Court is somewhat responsive to political pressures and popular sentiment, this could influence how the Court evaluates arguments that Congress has gone too far.  Polls continue to show widespread opposition to the mandate and widespread skepticism about its constitutionality. Indeed, it’s not very often that a  majority of states unite against a federal statute, particularly when preemption, sovereign immunity, or other state prerogatives are not at stake.   Thus a decision to strike down the mandate may offend academics and other legal elites, but it would not swim against the prevailing political tide or pick a fight with the political branches, as the Court did in Boumediene.

If pressed to make a prediction, it’s always safer to assume the federal government will prevail before the High Court.  It remains relatively rare for the Supreme Court to strike down a federal law.  Yet the Court has confounded such expectations before — and there’s a non-trivial chance it could do so again.  Here’s hoping.

The New York Times Room for Debate Forum has recently posted a set of short op eds by experts on both sides of the upcoming health care cases. My own contribution to the Forum is here. Here’s an excerpt:

The individual health insurance mandate case raises momentous issues about the limits of federal power. As James Madison put it, the Constitution does not give the federal government “an indefinite supremacy over all persons and things.” If the court upholds the mandate, that principle will be undermined.

The commerce clause gives Congress authority to regulate interstate commerce. Failure to purchase health insurance is not commerce, interstate or otherwise. Since the 1930s, Supreme Court decisions have interpreted the clause broadly. But every previous case expanding the commerce power involved some sort of “economic activity,” such as operating a business or consuming.

If Congress could use the clause to regulate failure to purchase insurance merely because that choice has economic effects, there would be no structural limits to its power.

To my mind, the most interesting piece in the Forum is Vanderbilt lawprof James Blumstein’s commentary on the unduly neglected Medicaid conditional funding case. This important issue deserves more attention than it has gotten so far.

The biggest weakness in the case for the constitutionality of the individual health insurance mandate is that it collapses into a rationale for virtually unlimited federal power. To deal with this problem, defenders of the mandate have put forward a variety of arguments claiming that health care is a special case.

The most popular one, recently restated by Walter Dellinger and Linda Greenhouse, is that health care is a special case because everyone or almost everyone uses it at some point in their lives. However, there is a serious flaw in this argument that mandate defenders have yet to find a way around. I have pointed it out several times over the last two years, including here:

The fact that most people eventually use health care does not differentiate health insurance from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that the government does not argue that everyone will inevitably use health insurance. Instead, they define the market as “health care.” The same bait and switch tactic works for virtually any other mandate Congress might care to impose.

Consider the famous example of the broccoli mandate raised by Judge Roger Vinson in the Florida case. Not everyone eats broccoli. But everyone inevitably participates in the market for “food.” Therefore, a mandate requiring everyone to purchase and eat broccoli would be permissible under the federal government’s argument. The same goes for a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. There are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation.” We all need to get from place to place somehow. How about a mandate requiring all Americans to see the new Harry Potter movie? After all, just about everyone participates in some way in the market for “entertainment.”

Interestingly, Greenhouse unintentionally illustrates this point herself. As she puts it:

The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

Brussels sprouts and buses are indeed alternatives to broccoli and cars. But Brussels sprouts are still part of the food market, and buses part of the market for transportation, in the same way as health insurance and other forms of health care provision are both part of the health care market. Thus, people “who don’t want to buy broccoli or a new car” are still “in commerce” just like people who don’t want to buy health insurance.

You can use similar reasoning to justify virtually any other mandate. Every good that we might be required to purchase or use is part of some broader market that all or most of us will not avoid. How about a mandate requiring people to read and study Volokh Conspiracy blog posts? After all, everyone at least to some degree uses the market for “information.” And if you don’t get information from the VC, you are still likely to get it from other (surely inferior) sources.

As Jonathan Adler points out, it is not in fact true that everyone uses the health care market. A few people do manage to avoid it. By contrast, the market for food really is literally impossible to avoid for anyone who wants to remain alive for more than a short time. Even if you grow all your own food without using any tools purchased from others, you would still be engaging “economic activity” as the Supreme Court defines that term. Far from distinguishing this case from the broccoli mandate, the “everyone uses health care” argument actually provides stronger support for food purchase mandates than for the health insurance mandate.

Mandate defenders have also advanced several other rationales for why this is a special case. I give a detailed critique of them in this article, and in the amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars (pp. 22-28). These rationales all suffer from much the same weaknesses as the “everyone uses health care” argument: their reasoning can justify virtually any other mandate, including the broccoli mandate, the car purchase mandate, and others.

So far, all the king’s horses and all the president’s men have yet to figure out a way to make this mandate special again. Indeed, it’s noteworthy that the seriously flawed “everyone uses health care” argument remains the most popular of the different rationales for why the mandate is a special case. If the many outstanding lawyers and legal scholars on the pro-mandate side have not come up with anything better after two years of effort, that may indicate that no better argument is possible.

None of this will matter if the Court is willing to follow the lead of the D.C. Circuit, which upheld the mandate despite acknowledging that there are no limits to the federal government’s logic. But, like David Bernstein, I highly doubt that a majority of the Justices are going to endorse the notion that congressional power is essentially unlimited.

UPDATE: For some reason, this post was initially time-stamped a day earlier than it should have been. I have now fixed this problem.

There are serious arguments in support of the constitutionality of the individual mandate (just as there are serious arguments against it).  There are also quite a few bad arguments, and quite a few that rest on patently false premises.  A common example of the latter is that the mandate does not require anyone to engage in commercial activity because all Americans will, in one way or another, eventually engage in health care markets.  This is not true.

Here’s an example.  Walter Dellinger, in  today’s Washington Post, asserts: “The mandate does not force people into commerce who would otherwise remain outside it.”  This is false, as Dellinger’s essay effectively acknowledges when it goes on to note that health care is “an activity in which virtually everyone will engage.”  This latter statement may be true.  ”Virtually everyone” may acquire health care — but “virtually everyone” is not “everyone.”  Most people may purchase health care at some point in their lives, but some will not.  Some people will refuse to purchase health care for religious reasons.  Some will not purchase health care because they are lucky enough not to need such care before a sudden death. Still others may decide not to purchase health care because they have chosen to remove themselves from commerce — consider a survivalist or other person who decides to live in a shack, growing their own food, and not engaging in commerce with others.  All but the former are forced to enter into commerce who “would otherwise remain outside it.”  Indeed, under Cruzan, there is a fundamental right to refuse even life-saving health care.  Therefore, the government cannot assume that each and every person will, at some point, use (let alone purchase) health care, as every American has the right to decide otherwise.  These facts clarify the nature of the legal case for the mandate.  Specifically, that some Americans could otherwise refrain from entering health care markets means that, in order to sustain the mandate the Court must conclude that in order to regulate commerce in which most Americans engage, the federal government has the power to force all Americans to engage in it.

Dellinger goes on to say that “”people who go without insurance often shift the costs of their health care to other patients and taxpayers. That situation is different from what happens with any other type of purchase.”  This latter claim isn’t true either.  Those who fail to acquire adequate levels of disaster insurance “often shift the costs” of disaster assistance on to others, as the federal and state governments regularly provide assistance to disaster victims above and beyond what their insurance provides.  And yet the federal government does not mandate the purchase of flood or other disaster insurance.

That there is some number of people, however small, who would otherwise not engage in health care markets and that there are other contexts in which the under-insured shift costs on to others do not establish that the mandate is unconstitutional.  But the persistence of arguments that rest on false premises is further evidence that the individual mandate case is not as easy as some like to suggest.  After all, if this were such an easy case, advocates would not need to stretch the facts or make false claims to make their case.

For readers who may be interested, I will be on C-SPAN’s Washington Journal from 8 to 8:30 AM tomorrow to talk about the upcoming Supreme Court oral argument on the Anti-Injunction Act, and whether or not it precludes the individual mandate lawsuit. The AIA issue is somewhat technical. But it does tie in to one of the key constitutional questions at stake in overall individual mandate litigation: whether the mandate is constitutional because it is actually a tax. Although the Fourth Circuit ruled otherwise, most lower courts have concluded that the AIA does not apply to the anti-mandate lawsuits because the mandate is not a tax as that term is defined in the Constitution.

I might have instead appeared on Washington Journal on Tuesday to talk about the main individual mandate oral argument. But unfortunately I will be at an international academic conference in Montreal that day – ironically a conference focused on the question of whether judicial review in federal systems promotes nationalization or decentralization.

In a comment on my recent post on public opinion and the individual mandate case, University of Richmond law professor Kevin Walsh suggests that the anti-mandate forces might need sympathetic plaintiffs in order to prevail in the court of public opinion:

Some say that the challengers to the individual mandate can win even if they lose on the merits. That is, they can win the broader battle for public opinion even if they lose in the Supreme Court. I think that’s right. This kind of win is a common goal of public impact litigation. But the strategy thus far pursued by the mandate challengers differs from the strategy one often sees in such litigation. A typical strategy focuses on real people and the effect of the challenged rule on them. Not so the individual mandate challenges.

In a recent post at The Volokh Conspiracy (“Public Opinion, the Individual Mandate, and the Supreme Court”), Ilya Somin compares the potential backlash that could be generated by a Supreme Court decision upholding the constitutionality of the mandate with the backlash generated by the Kelo case. The Supreme Court held in Kelo that government can use its power of eminent domain to take the property of an individual for use in a private party’s redevelopment efforts. The idea was that this would serve a “public use” by generating more tax revenue. One of the strategies of the challengers in Kelo was to highlight the plight of a particular individual, Susette Kelo, showing how the government was going to affect her life by taking her house away.

Contrast this strategy with that pursued by the individual mandate challengers. They have focused on the deprivation of liberty inherent in being ordered by the federal government to enter into, and stay in, an economic relationship with another private party. But this focus has not involved real people. Perhaps understandably, the mandate challengers have thus far chosen not to focus on the plight of particular individuals….

It’s certainly true that sympathetic plaintiffs are always helpful for public relations. But they are not essential. The anti-mandate forces are winning the public relations battle even without them, as we can see from polls showing that the vast majority of the public wants the Court to strike down the mandate. Sometimes, focusing on general principles is as much or more effective than focusing on tearjerking individual stories.

This is not the first major constitutional case in which the plaintiffs’ lawyers managed to win in the court of public opinion while downplaying the individual stories of their clients. As co-blogger Dale Carpenter shows in his excellent recent book on Lawrence v. Texas, the lawyers in that case deliberately shielded their clients from public scrutiny in large part because they were likely to seem unsympathetic to the public (both men had criminal records for minor offenses, they were not in a longterm relationship with each other, and they quite likely did not actually have sex the night they were arrested).

By focusing on the general principle that it is wrong for the government to prosecute people for consensual gay sex, the pro-gay rights side in Lawrence managed to win over the majority of the public, as well as the Supreme Court justices. The anti-mandate forces are trying to pull off a similar victory by focusing on the general idea that it is dangerous to give Congress a blank check to enact whatever mandates it wants. This strategy has been very successful with the general public, though it remains to be seen whether it will work with the justices.

Walsh also argues that the diverse circumstances of individual plaintiffs justify 6th Circuit Judge Jeffrey Sutton’s approach of barring facial challenges to the mandate and instead forcing plaintiffs to make individual as-applied challenges. I criticized Sutton’s theory in detail in this post.

UPDATE: Timothy Sandefur of the Pacific Legal Foundation points out that at least some of the anti-mandate cases do have sympathetic plaintiffs:

Prof. Kevin Walsh thinks opponents of the Individual Mandate should have found a sympathetic client. How about PLF client Matt Sissel?

A decorated Iraq War veteran (a Medic, incidentally) as well as an entrepreneur and a talented artist, Matt started a business to sell portraits and other artwork. He doesn’t buy health insurance because it doesn’t make financial sense for him to do so, given his other financial commitments, his health, and so forth. But thanks to the Mandate, he’s forced to buy insurance he doesn’t need with money that would be better spent growing his business, in order to subsidize insurance companies, who are, in turn, forced to provide insurance to people who are already sick.

Sissel tells his own story here. He certainly seems like a sympathetic plaintiff to me.

Sissel’s case, of course, is not the one before the Supreme Court right now. But one of the plaintiffs that is before the Court is the National Federation of Independent Business, the nation’s largest small business organization, which likely has members who are small businesspeople that find themselves in a situation similar to Sissel’s.

Linda Greenhouse and Dahlia Lithwick have attempted to resuscitate the claim that the individual mandate is so obviously constitutional that only ignorance or political bias can lead anyone to believe otherwise.

Such claims were perhaps understandable back when this litigation began. But even then, there was no expert consensus on the constitutionality of the mandate. They are even more dubious now, after several lower court decisions have ruled against the mandate. Even the decisions upholding it all acknowledge that the case raises novel issues. And all of them spend many pages explaining their reasoning, which is not what you would normally see in an easy open and shut case.

It’s also worth noting that many leading constitutional federalism scholars believe that the law is unconstitutional, including Gary Lawson (one of the top experts on the Necessary and Proper Clause), Steve Calabresi (who is one of the legal scholars who signed on to the amicus brief I wrote for the Washington Legal Foundation), Richard Epstein, and, of course, co-blogger Randy Barnett. If the case were an easy one, we would not have such a deep division among legal experts and jurists.

You can say that the experts who think the mandate is unconstitutional are just politically biased. But of course the same charge can be levied at Greenhouse, Lithwick and the overwhelming majority of commentators on the other side. Greenhouse makes much of the fact that two conservative judges have voted to uphold the mandate. But a Democratic-appointed judge – Frank Hull of the 11th Circuit – has voted to strike it down. These exceptions do not change the fact that the overwhelming majority of conservative and libertarian experts believe that the law is unconstitutional, while the overwhelming majority of liberal ones believe the opposite. Such ideological polarization among experts is actually yet another sign that the issue is not an easy one. If it were, we would be more likely to see an expert consensus developing.

Greenhouse and Lithwick’s argument is not helped by the various factual and analytical errors they make in their pieces. Ed Whelan catalogues them here and here. Perhaps the most important is Greenhouse’s fallacious assertion (seemingly endorsed by Lithwick) that the plaintiffs’ argument is “Basically just one word…: “unprecedented.” In reality, the plaintiffs have never argued that the unprecedented nature of the mandate by itself proves that it is unconstitutional. Rather, their brief repeatedly emphasizes that the main reason to strike down the mandate is that there is no logical way to uphold it without giving Congress virtually unlimited authority to impose other mandates. So far, the federal government has failed to come up with any limiting principle that proves otherwise, as I explain in some detail in this article. If the federal government loses this case, it will be because of that failure, not because only ignorant or politically biased people can believe that law is unconstitutional. As David Bernstein puts it, the Court majority is not going to buy the notion of a “Congress-can-do-whatever-it-wants power.”

Greenhouse also claims that Gonzales v. Raich and United States v. Comstock clearly dictate the outcome of the mandate case. She does not even consider ways in which these cases differ from the mandate issue, which I described here and here. As I explained in the WLF amicus brief, some elements of Comstock actually help the anti-mandate plaintiffs. Ironically, Greenhouse previously cited my article explaining why Comstock does not dictate the outcome of the mandate case as evidence that even “critics of the newly enacted health care law” believe that Comstock requires the mandate to be upheld.

I do not mean to suggest that there isn’t a substantial case in favor of the constitutionality of the mandate. Some of the law’s defenders have made serious and insightful arguments on its behalf (e.g. Brian Galle, Neil Siegel, and my former colleague Max Stearns). The Supreme Court’s precedent on the relevant issues is complex and unclear enough that both sides can make a good case for their position. In my view, the anti-mandate side does have an overwhelming advantage under the text and original meaning of the Constitution. But textualism and originalism are not, and probably cannot be, the only interpretive methodologies used by the courts.

Be that as it may, public debate over this important issue is not improved by claims that the case for the mandate is so obviously right that no informed person can reasonably disagree with it.

UPDATE: I have changed my original description of 11th Circuit Judge Frank Hull as “liberal” to “Democratic-appointed,” because I recognize that there is disagreement over the nature of her judicial philosophy. I don’t think that this significantly affects my underlying point in that part of the post, which is that this case has split expert opinion largely along ideological lines.

In a recent post, co-blogger Orin Kerr suggests that polls showing the unpopularity of the individual health insurance mandate prove that slippery slope concerns about upholding the mandate case may be unfounded, because “mandates are just political losers.”

Some mandates are indeed political losers. But as I explain in the forthcoming article that Orin kindly linked to, the federal government’s rationales for the health insurance mandate open the door to almost every other conceivable mandate. In that vast universe of possibilities, there are going to be some political winners, including some that are likely to cause serious harm. There are numerous industries that would love to lobby for laws requiring people to buy their products. And at least some of them will achieve political success if the Court gives Congress a blank check to impose whatever mandates it wants. Even if only a small percentage of these possible mandates are ever enacted, the absolute number of political winners might turn out to be substantial.

Some mandates may go through because their supporters can effectively portray them as public health measures, efforts to stimulate the economy, or otherwise beneficial to the public. Others might succeed because much of the public is simply unaware of thema due to political ignorance. People may well not be aware of a mandate imposed on them, either because they happen to already be in compliance or because it is only selectively enforced. The minority who do get penalized for violating such a mandate will eventually become aware of it, of course. But they may not have enough political clout to get it abolished.

Orin says that mandates are likely to be unpopular because “[n]o one likes to be told what to do.” This is true to some extent. However, many people do like to tell others what to do, especially if they believe that those others are making poor decisions. That’s why many paternalistic policies are political winners.

The health insurance mandate is an unusual case for a variety of reasons. It was part of a major new law that dominated the headlines for many months. Most other mandates are unlikely to attract so much public scrutiny. In addition, precisely because it was part of such a massive bill addressing an important issue, the health insurance mandate quickly became a major focus of partisan conflict. Most legislation is far less controversial, and leads to far less political countermobilization, if any. Finally, the “adverse selection” policy rationale for the mandate is complex and difficult to explain to voters with little knowledge of economics and public policy. For these reasons, and perhaps others, the unpopularity of the health insurance mandate is likely to be a poor predictor of the politics of future mandates.

Lastly, I would emphasize that the unpopularity of the individual mandate was not enough to keep it from getting enacted in the first place. It was not enough to keep President Obama from supporting it, despite the fact that he had earlier denounced the idea as comparable to trying “to solve homelessness by mandating everybody to buy a house.” And if the Court upholds the mandate, it’s far from clear that it will ever be repealed. Sometimes, even an unpopular mandate can be a political winner.

Former CBO Director Douglas Holtz-Eakin and Nobel Laureate economist Vernon Smith had an op-ed in today’s WSJ on the “flawed economic foundations” of the Affordable Care Act.  On the individual mandate, they write:

 The Obama administration defends the mandate on the ground that a person’s decision to not buy health insurance affects commerce by materially increasing the costs of others’ health insurance. The government adds that health care is unique and therefore can be regulated constitutionally in ways other markets cannot.

In reality, the mandate has almost nothing to do with cost-shifting. The targeted population—the young, healthy and not poor who choose to forgo coverage—has a minimal role in the $43 billion of uncompensated health-care costs. In 2008, for example (the latest figures available), the Department of Health and Human Service’s Medical Expenditure Panel Survey showed that the uncompensated care of the mandate’s targeted population was no more than $12.8 billion—a tiny one-half of 1% of the nation’s $2.4 trillion in overall health-care costs. The insurance mandate cannot reasonably be justified on the ground that it remedies costs imposed on the system by the voluntarily uninsured.

The government’s other defense is that the health-care market does not exhibit textbook competition. No market does. The economic features relied upon by the government—externalities, imperfect information, geographically distinct markets, etc.—are characteristic of many markets.

The presence of externalities and other market imperfections does not justify a departure from the normal rules of the constitutional road. Health care is typically consumed locally, and health-insurance markets themselves primarily operate within the states. The administration’s attempt to fashion a singular, universal solution is not necessary to deal with the variegated issues arising in these markets. States have taken the lead in past reform efforts. They should be an integral part of improving the functioning of health-care and health-insurance markets.

In a recent post, my co-blogger Ilya Somin points out the polls showing that the individual mandate is very unpopular. The mandate polls just terribly. Few people like it, and most people would be happy for it to go. Ilya suggests that the unpopularity of the mandate gives the Court more freedom to strike down the mandate. To the extent the Justices might want to strike down the mandate but fear political backlash, the thinking runs, they need not worry. From that perspective, the mandate’s unpopularity puts a legal realist thumb on the scale of striking down the mandate.

Perhaps that’s right. But there’s a counterargument worth noting: The unpopularity of the mandate also rests in some tension with a major argument challenging its constitutionality. As Ilya has explained in a forthcoming article, the argument against the mandate is based in part on a predicted slippery slope. The mandate is unprecedented, the argument runs. If the Supreme Court upholds the mandate and legitimates the mandate as constitutional, then that will usher in a new period of mandates that will effectively destroy any notion of the federal government as a government of limited power. As Ilya notes, this argument rests in part on a prediction as to the political popularity of mandates. The argument is strongest if mandates are popular enough to be enacted into law:

The empirical aspect of the issue is more difficult to assess. It depends in part on future political dynamics that are hard to predict. Nevertheless, there is a substantial likelihood that Congress will take advantage of an unconstrained power to impose mandates for the purpose of benefiting favored interest groups. Such mandates could be made more palatable to public opinion by posing as public health measures or efforts to strengthen the economy. They could be promoted by classic “Baptist-bootlegger coalitions,” combining public health advocates and industry interest groups. Such a coalition can effectively portray an effort to benefit an influential interest group as a measure promoting the public good of the general public.

The polls on the unpopularity of the mandate don’t say much about why so many people oppose the mandate. But one plausible interpretation of the polling numbers is that mandates are just political losers. The reason why is probably obvious: No one likes to be told what to do. When the government mandates action, it infringes on liberty in a way that most folks intuitively get, and many people intuitively oppose. So if you’re a politician, it’s more politically palatable to achieve the same regulatory result by creating an entitlement. Lots of people love a handout but abhor a mandate, even if they end up operating similarly in practice (because we have to pay for the handout somehow). To the extent that reaction explains the unpopularity of the mandate, it arguably undercuts the slippery slope argument made by the challengers.

Anyway, I don’t know in the end how these two arguments play out against each other. If our many posts on the mandate suggest anything, there will be sharp disagreement on how strong these arguments may be. But I did want to point out that the polls showing the unpopularity of the mandate arguably cut both ways.

A recent Washington Post/ABC poll shows that 68% of the public want the Supreme Court to strike down the individual health insurance mandate. That includes 42% who want the Court to invalidate the entire Affordable Care Act and 26% who want it to strike down the mandate alone. If forced to choose, 52% of those who want the Court to strike down only the mandate would prefer for the Court to get rid of the entire law, if that is the only way to rule the mandate unconstitutional. That means that some 55% would rather have the Court invalidate the entire law than leave the mandate in place. By a 52-41 margin, respondents in the WP/ABC poll also say that they disapprove of the health care law overall.

Support for invalidating the mandate cuts across ideological lines, with even a slight 48-44 plurality of Democrats saying they want the court to strike it down. These results are similar to those reached in other recent polls on the constitutionality of the mandate.

These poll results do not prove either that the law is unconstitutional or that the justices are necessarily going to rule the way the public wants. The public’s knowledge of constitutional law is weak, and the justices don’t always rule in accordance with public opinion.

However, the overwhelming public support for striking down the mandate does suggest that if a majority of the Court wants to invalidate this law, they probably won’t be prevented from doing so by fear of a political backlash. Usually, the Court hesitates to strike down major legislation strongly supported by the president and his party because doing so could result in a political confrontation that the Court is likey to lose, as happened during the New Deal period. In this case, however, strong public opposition to the mandate – along with extensive opposition in Congress – insulate the Court from any such backlash. The situation is in sharp contrast to what happened in the 1930s, when many of the laws struck down by the Court had broad bipartisan support.

The situation is also different from what happened after the Citizens United decision in 2010, the most recent Supreme Court ruling that generated extensive public opposition. In that case, The Court endorsed a result contrary to majority opinion, though I believe it was a correct one.

In fact, the Court could well generate greater public anger if it upholds the mandate than if it strikes it down. Many more people want the law struck down than want the Court to uphold it. As the case of Kelo v. New London dramatically demonstrates, public outrage can be stimulated by a decision upholding an unpopular law just as readily as by striking down a popular one.

The Hill has a story claiming that the federal government has changed its defense of the individual mandate to emphasize the Necessary and Proper Clause more:

The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court.

Written briefs in the landmark case increasingly have focused on a part of the Constitution that didn’t get much attention in lower courts….

The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.

The federal government has in fact relied on the Necessary and Proper Clause throughout the litigation in the lower courts. So at most this is a shift of emphasis rather than substance. The actual logic of the argument is essentially the same as in the lower courts. And every lower court decision striking down the mandate has in fact considered and rejected the government’s Necessary and Proper Clause reasoning; the lower court decisions upholding the mandate largely ignored the issue because they concluded that the mandate could be justified under the Commerce Clause alone.

If the Obama Administration has decided to emphasize the Necessary and Proper Clause argument more, it is remarkable that their brief for the Supreme Court case almost completely ignores the biggest weakness in that argument: the possibility that the mandate is not “proper” even if it is “necessary.” Both Supreme Court precedent and the text and original meaning of the Constitution make clear that these are two separate requirements, both of which must be met. Yet the government’s approach to the case essentially transforms the Necessary and Proper Clause into the “Necessary Clause.” The amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars focuses on this very issue. It explains in detail why the mandate is not “proper” and therefore cannot be justified under the Necessary and Proper Clause even if it is “necessary.”

UPDATE: The Hill article speculates that the government’s emphasis on the Necessary and Proper Clause may be an effort to attract Justice Scalia’s vote. If so, it is worth noting that Scalia has repeatedly emphasized in previous opinions that propriety is a requirement distinct from necessity which imposes constraints on congressional power even in cases where the challenged federal law may be “necessary.” I discuss Scalia’s opinions in this field in the Washington Legal Foundation brief (pp. 13-14).

For readers who may be interested, C-SPAN has posted the video of my recent debate on the individual mandate litigation with Andrew Pincus of Mayer Brown, a well-known appellate litigator who has argued many Supreme Court cases. The event took place at the Washington Legal Foundation, on whose behalf I wrote an amicus brief in the case. Tom Goldstein of SCOTUSblog served as the moderator.

Next Tuesday, March 13, from 9:30 to 10:30, I will be taking part in a debate on the individual mandate litigation at the Washington Legal Foundation. Joining me will be Andrew Pincus of Mayer Brown, counsel for a group of constitutional law professors who filed an amicus brief supporting the constitutionality of the mandate. I myself authored a brief against the mandate on behalf of WLF and a different group of constitutional law scholars. Tom Goldstein of SCOTUSblog will moderate.

Duke law professor Stephen Sachs has a new essay. “The Uneasy Case for the Affordable Care Act,” responding to Erwin Chemerinsky on the constitutionality of the individual mandate.  Here is the abstract from SSRN:

The constitutionality of the Affordable Care Act is sometimes said to be an “easy” question, with the Act’s opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won’t be easy, and the arguments against it sound in law rather than politics.

Written to accompany and respond to Erwin Chemerinsky’s essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. Congress has power to regulate commerce among the several States, but that might not extend to every individual decision involving economic considerations — walking rather than taking the bus, stargazing rather than renting movies, or carrying a gun in a school zone rather than hiring private bodyguards. Even the necessary-and-proper power, the strongest ground for the mandate, may stop short of letting Congress claim extraordinary powers to fix the problems created by its exercise of ordinary ones.

Because the mandate’s opponents can find some support in existing doctrines, a decision striking down the mandate needn’t be a drastic break from past practice. By contrast, a decision upholding the mandate would raise serious questions about the limits of Congress’s powers. To many, these questions offer good reasons for doubting whether existing doctrine gets it right — reasons having more to do with constitutional theory than political preference.

(Hat tip: Legal Theory Blog)

This brief paper is a welcome addition to the debate over the individual mandate because it eschews categorical claims about how existing precedent applies to the mandate. As I have maintained for some time, there are strong arguments in favor of the individual mandate’s constitutionality, particularly under the Necessary and Proper Clause. But there are also strong arguments for the unconstitutionality of the mandate, particularly if one takes seriously the notion of judicially enforced limits on federal power.

That the constitutionality of the mandate is not an “easy” case is shown by the fact that its defenders have not coalesced around a simple and straightforward defense. The arguments put forward by prominent academics supporting the mandate (e.g. Balkin, Amar, etc.) have evolved substantially, and some early arguments in support of the mandate have been abandoned. The arguments contained in the Justice Department’s briefs have evolved substantially as well. Not only has the mandate divided the appellate courts, but those judges voting to uphold the mandate have adopted differing (and at times even conflicting) rationales. These are not the hallmarks of an easy case.

The constitutionality of the individual mandate will not be determined by a simple and straightforward application of existing precedent, as existing precedent only goes so far. Precedent will need to be supplemented with resort to foundational conceptions about the nature of federal power. Those who believe that Lopez, et al., are slight exceptions to expansive federal authority see constitutionality of the mandate as a natural extension of post-New Deal jurisprudence. Those who believe that Lopez, et al., marked a reassertion of underlying constitutional principles — as the opening line of Lopez would suggest — see the mandate as an anathema. Whichever way the Court goes (and readers know I believe the Court should strike it down), the Court will not need to overturn existing precedent to do it.