Archive | Individual Mandate

Judicial Minimalism, the Mandate, and Mr. Roberts

In July, I suggested that Chief Justice Roberts’ decision to uphold the individual mandate as a tax in NFIB v. Sebelius was largely consistent with the overall judicial approach he’s demonstrated since joining the Court. I have expanded this argument into an essay that will be included as a chapter in the forthcoming book The Health Care Case: The Supreme Court’s Decision and Its Implications, edited by Nathaniel Persily, Gillian E. Metzger, and Trevor W. Morrison and to be published by Oxford University Press early next year. (This is the same book Ilya noted here.) A draft of the chapter is available on SSRN. Here is the abstract:

Chief Justice John Roberts’s decision in NFIB v. Sebelius holding the individual mandate exceeded the scope of Congress’s power to regulate commerce but could nonetheless survive as a constitutional exercise of the taxing power caught most commentators by surprise. Post-decision reports that Roberts changed his vote at some point during deliberations fueled speculation his opinion was politically motivated. Ignored in most post-decision commentary is the extent to which Chief Justice Roberts’s NFIB opinion is consistent with his own stated judicial philosophy and his record on the bench. The key elements of his opinion, including his Commerce Clause analysis and adoption of a “saving construction” to preserve the statute’s constitutionality are of a piece with his prior opinions as a Justice and Circuit Court judge and his accounts of the proper judicial role. This decision provides further confirmation that the Chief Justice is, above all else, a conservative judicial minimalist in his approach to deciding cases.

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Michael Greve on the Proper Meaning of “Proper” in the Necessary and Proper Clause

At the Law and Liberty Blog, my George Mason colleague Michael Greve has posted an insightful commentary on my forthcoming article analyzing the proper meaning of “proper.” Michael agrees with my conclusion that the individual health insurance mandate was improper, but takes issue with some of my reasoning:

My colleague Ilya Somin has penned a good piece on “The Individual Mandate and the Proper Meaning of ‘Proper’,” arguing that Chief Justice John Roberts’ opinion in NFIB v. Sebelius has “moved our jurisprudence closer to the proper meaning of proper.” Moreover, the Chief was right to conclude that the notorious individual mandate flunks a proper “proper” test. I agree with that assessment and much else in Ilya’s instructive article, though perhaps for somewhat different reasons.

The basic proposition is that “proper” in the Necessary and Proper Clause must have some independent meaning (independent, that is, from “necessary”). A “minimalistic” reading of “proper,” Ilya writes, holds that Congress may not pass laws that imply a limitless understanding of congressional powers, or which would render large parts of the Constitution redundant. (In other words, a constitutional interpretation that can’t handle broccoli must be wrong.) A broader reading, advocated by a scholars’ amicus brief in NFIB v. Sebelius… and suggested twice in Chief Justice Roberts’ opinion, picks up John Marshall’s M’Culloch suggestion that the Necessary and Proper Clause encompasses “incidental” powers but not “great substantive and independent” ones. A power to impose mandates (the argument concludes) flunks that test.

I’m not entirely happy with either formulation. The “minimalistic” reading simply restates the principle of limited and enumerated powers, which would control (and since at least Gibbons v. Ogden has controlled) even without “proper.” And the broader reading rests on a distinction that to my mind was suspect the day it was announced. (Nobody

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Free Market Alternatives to the ACA

Back in December, I criticized the false dichotomy set up by those who claim that the only available alternative to the Obama health care plan is some form of socialized medicine.

In this recent essay, University of Chicago economist John Cochrane gives an excellent summary of free market alternatives to the ACA that can cut health care costs and deal with the problem of preexisting conditions, which is the main justification for the ACA’s individual mandate.

Here’s one of his key points:

We all agree what we’d like to see: Health care needs to become efficient, innovative, and provide high quality care at lowest possible cost….

How will this happen? Well, we have before us many good examples. Walmart and Home Depot revolutionized retail. Airlines are dramatically cheaper than in the 1970s. Consumer electronics, telecommunications, computers, and even cars are much better and cheaper, for what you get, than ten or twenty years ago.

These revolutions are not just about technology. In most of these cases, we see process innovation, reorganizing activities to deliver complex services at lower cost and with better and more uniform quality. This process efficiency is most glaringly absent in health care…

How will this change come about? My examples share a common thread: Intense competition by new entrants, who put old companies out of business or force unwelcome and disruptive changes. Microsoft displaced IBM, and Google is displacing Microsoft. Walmart displaced Sears, and may displace Wal‐Mart. Typewriter companies didn’t invent the world processor, nor did they adapt. The post office didn’t invent FedEx or email. Kodak is out of business. Toyota gave us cheaper and better cars, not Ford/GM/Chrysler competition. When the older businesses survive, it is only the pressure from
new entrants that forces them to adapt….

A small example: In

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My Forthcoming Article on the Individual Mandate and the Meaning of “Proper” in the Necessary and Proper Clause

My forthcoming book chapter, “The Individual Mandate and the Proper Meaning of ‘Proper,'” is now available on SSRN. It is forthcoming in The Health Care Cases, edited by Gillian Metzger, Trevor Morrison, and Nathaniel Persily, eds. (Oxford University Press). The book is a collection of essays on NFIB v. Sebelius, the case where the Court addressed the constitutionality of the Obama health care bill. Among the many other contributors are Jack Balkin, Erwin Chemerinsky, Richard Epstein, Charles Fried, Jamal Greene, Linda Greenhouse, Andrew Koppelman, Neil Siegel, Larry Solum, and VC co-bloggers Jonathan Adler and Randy Barnett.

Here is the abstract for my contribution:

The Necessary and Proper Clause of the Constitution has often been at the center of debates over the limits of federal power. But in the first 220 years of its history, the Supreme Court never gave us anything approaching a comprehensive analysis of what it means for a law to be “proper.” The Court’s recent decision on the constitutionality of the Affordable Care Act individual health insurance mandate in NFIB v. Sebelius helps fill this gap. It moves constitutional jurisprudence closer to the proper meaning of proper.

In this article, I explain why Chief Justice John Roberts’ key swing-vote opinion was right to conclude that the individual health insurance mandate requiring most Americans to purchase government-approved health insurance is outside the scope of Congress’ power under the Necessary and Proper Clause becasue it is not “proper.”

Part I shows that the Necessary and Proper Clause compels laws authorized by the Clause to meet two separate requirements: necessity and propriety. Both the original meaning of the Clause and Supreme Court precedent support this interpretation. The Necessary and Proper Clause cannot be reduced to a mere “Necessary Clause” that renders the word “proper” meaningless.

Part II

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Ninth Circuit Treats Supreme Court Individual Mandate Necessary and Proper Clause Ruling as a Binding Precedent

Co-blogger Jonathan Adler recently posted on United States v. Elk Shoulder, a recent Ninth Circuit decision which may be the first court of appeals case interepreting the Supreme Court’s individual health insurance mandate decision in NFIB v. Sebelius.

When NFIB came down, some commentators argued that Chief Justice Roberts’ conclusion that the mandate was not authorized by the Commerce Clause and Necessary and Proper Clause was mere dictum, and therefore not binding precedent for the lower courts. I criticized that view here. It’s worth noting that the Ninth Circuit just treated the Roberts’ Necessary and Proper reasoning from NFIB as if it were binding. In upholding the Sex Offender Registration and Notification Act sex offfender registration requirement, they relied heavily on NFIB’s interpretation of the Necessary and Proper Clause:

[B]ecause SORNA registration requirements are imposed only on individuals who were convicted of sexual offenses, it regulates only “those who by some preexisting activity bring themselves within the sphere of federal regulation.” NFIB, 132 S.
Ct. at 2592….

Although the Necessary and Proper Clause provides no justification for laws effecting “a substantial expansion of federal
authority,” NFIB, 130 S. Ct. at 2592, SORNA’s registration requirement is “narrow in scope” and “incidental to the exercise” of enumerated powers. Id. at 2592 (opinion of C.J. Roberts)…

The conclusions that the Necessary and Proper Clause does not authorize legislation that doesn’t regulate a “preexisting activity” or that effects “a substantial expansion of federal authority” are central elements of Roberts’ analysis of the Clause in NFIB. And in Elk Shoulder, the Ninth Circuit seems to be treating them as binding precedent. It’s theoretically possible to interpret these passages as merely citations of persuasive authority that happen to accord with the Elk Shoulder panel’s own views of the Necessary and Proper [...]

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Dogs that Didn’t Bark in Tonight’s Presidential Debate

In addition to Willow, there were two major dogs that didn’t bark during tonight’s presidential debate. First, even though the debate was supposed to focus on domestic policy, neither the moderator nor the candidates ever focused on some of the most important domestic issues on which the president can have a big impact: issues such as judicial nominations (not discussed at all) and regulatory agencies (only mentioned in passing). Instead, they spent a lot more time talking about short term economic performance, which presidents have only very limited leverage over. That is likely because voters who know little about politics and policy tend to focus on the wrong issues because they often don’t understand what a president can actually control and what he (mostly) can’t.

Second, although Romney predictably spent a lot of time attacking Obamacare, he said absolutely nothing about the individual health insurance mandate, which remains hugely unpopular – far more so than any other part of the law. Even when Obama waxed eloquent about the evils of insurance companies, Romney didn’t play the obvious gambit of pointing out that the President is the one who passed a law that forces millions of people to buy insurance company products that they don’t want, after saying in 2008 that “[f]orcing people to buy health insurance [in order to provide them with health care] is like forcing the homeless to buy a house to eliminate homelessness.”

Why did Romney let this opportunity slip by? The answer is obvious. If he had attacked the individual mandate, Obama could have countered by noting that Romney’s own Massachusetts health care plan also includes an individual mandate, and Obamacare was modeled on Romneycare. Even as it stood, Obama was able to point out (correctly) that his health care plan was modeled on [...]

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Upcoming Appearances at the University of Minnesota and the University of Tulsa

For those who may be interested, I am going to be speaking at the University of Minnesota Law School and the University of Tulsa this week.

On Wednesday at 12:15 PM, I will be debating University of Minnesota Professor Fred Morrison about the Supreme Court’s health care decision at the University of Minnesota Law School, at an event sponsored by the Minnesota Federalist Society.I summarized my thoughts on the decision here.

I did not notice until after the fact that this event coincides with Yom Kippur. I apologize if that ends up driving away a significant part of the potential audience. But there was no other date that fit all the participants’ schedules.

On Friday, I will be participating in a conference at the University of Tulsa College of Law devoted to the work of Yale Law School Professor Heather Gerken, one of the nation’s top federalism and election law scholars. The conference is open to the public and the schedule is available here. I am told that lawyers can get CLE credit for attending. Among the other participants are well-known constitutional law and elections scholars such as Sanford Levinson (Texas), Ernie Young (Duke), my GMU colleague David Schleicher, and many others.

I previously commented on Gerken’s important work on federalism here. [...]

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CBO: Six Million People to Pay Individual Mandate Penalty Tax in 2016

The Congressional Budget Office has just released new estimates of the number of people who will be subject to the individual mandate penalty tax for failing to obtain qualifying health insurance in 2016. According to CBO’s new analysis, the penalty tax will be paid by six million people. The penalty tax will generate an estimated $7 billion for the U.S. treasury and 80 percent of those paying the penalty tax will earn less than 500 percent of the poverty level. (For reference, the poverty line for a family of four is $23,050 in 2012, according to HHS.) The estimated number of people who will have to pay the penalty tax is approximately 50 percent higher than the CBO’s 2010 estimate, but the CBO only attributes a small portion of the increase to potential state decisions to opt out of the Medicaid expansion as allowed by NFIB v. Sebelius. According to the CBO, 30 million Americans will remain uninsured in 2016.

UPDATE: The AP reports: “Nearly 6 million Americans — significantly more than first estimated— will face a tax penalty under President Barack Obama’s health overhaul for not getting insurance, congressional analysts said Wednesday. Most would be in the middle class.” [...]

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Debate over the Individual Mandate Decision at the University of Toledo

This Thursday at noon, I will be debating the Supreme Court’s recent decision upholding the individual health insurance mandate, at the University of Toledo College of Law. Toledo law professor Rebecca Zietlow, author of several important articles on the health care law and related issues, will be defending the constitutionality of the mandate.

For my take on the Court’s decision see here. [...]

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How to Respond to the Individual Mandate Decision

My George Mason colleague Eric Claeys has an insightful piece at the National Review website on how opponents of the individual mandate should respond to the Supreme Court’s decision upholding it:

In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. Constitutionalists — partisans of limited, constitutional government — now face a critical decision: Should they acquiesce in the Sebelius decision and move on to campaign against Obamacare exclusively on policy grounds? Or should they continue to make constitutional criticisms of Obamacare — and broaden those charges by making the Sebelius decision part of their indictment? Definitely the latter.

I agree with Eric that Obamacare opponents have every right to continue attacking its constitutionality. The other branches of government and the general public have to obey Supreme Court decisions. But they don’t have to agree with them or refrain from urging their reversal. This goes double for a closely divided 5-4 decision resting on highly contestable reasoning that could well be reversed or narrowed by a future Court. Just as liberals continue to attack decisions they oppose, such as Citizens United, conservatives and libertarians should oppose Sibelius. I think Eric is also correct that the other branches of government can reject a policy as unconstitutional, even if the Supreme Court rules that it is permissible. This is particularly true in a case like this one, where Chief Justice Roberts explicitly rejected the “most natural” reading of the individual mandate law and adopted an extremely strained alternative for the purpose of saving it from invalidation.

Eric also has a good summary of some the reasons why the Chief Justice John Roberts’ opinion upholding the mandate as a tax was wrong:

To justify the mandate

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Legitimacy, Popularity, and the Individual Mandate Decision

In response to my post arguing that Chief Justice Roberts’ vote in the individual mandate decision failed to enhance the Supreme Court’s legitimacy, co-blogger Orin Kerr argues that Roberts may have been motivated by a different definition of legitimacy, one seemingly unrelated to popularity:

If Roberts is thought to have been influenced by public pressure, though, wouldn’t that pressure push him to strike down the mandate, not uphold it? Ilya speculates that Roberts was trying to gain the acceptance of “traditional liberal legal elites” like liberal law professors. They held the opposite view from the public, so perhaps Roberts was caving into their pressure despite public opinion as a whole….

But Ilya’s speculation that Roberts was trying to please “liberal legal elites” strikes me as far-fetched. Until the mandate case, Roberts has been a reliable conservative vote. He has written and joined decisions that greatly enraged the “traditional liberal legal elites,” such as Citizens United and and Parents Involved v. Seattle School District….

The way out of the puzzle is to recognize the difference between legitimacy and popularity. Chief Justice Roberts cares about the legitimacy of the Supreme Court. He has a conception of the judicial role in which judges generally don’t jump into the political thicket and make themselves major players on the political scene. This was the often-ignored point of his umpire analogy during his confirmation hearings: “Nobody ever went to a ball game to see the umpire.” The umpire is legitimate when he is unobtrusively calling pitches, but if he makes himself the story of the game, something has gone wrong. We can agree or disagree with this conception of the judicial role. But this is a very different concept than popularity.

Orin seems to be using the term “legitimacy” in a way different than most other [...]

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The Impact of the Individual Mandate Decision on the Supreme Court’s Legitimacy

Various leaks suggest that Chief Justice John Roberts switched his vote in the individual mandate case in order to protect his own and the Supreme Court’s reputation and enhance their legitimacy. Whether or not that was his objective, it is interesting to ask whether the goal was achieved. Did the decision enhance the Court’s legitimacy more than it detracted from it?

So far, the answer seems to be “no.” Post-decision polls show that the majority of the public disagrees with the mandate decision, and overall public approval of the Court has fallen substantially. These results were entirely predictable based on pre-decision polls, which consistently showed that an overwhelming majority wanted the Court to strike down the mandate, including even a slight plurality of Democrats.

Roberts probably did succeed in enhancing the Court’s reputation among law professors and left-wing legal elites, many of whom would have been very angry if the Court had invalidated the mandate. But even among this group, the results are somewhat equivocal. Many of them probably believe or at least suspect that Roberts switched his vote out of fear for his reputation rather than because he genuinely believed in the federal government’s dubious tax argument (which had been rejected by every lower court to have considered it, including several liberal judges). Those who do believe this may be happy about the result; but it is unlikely to enhance their opinion of Roberts himself, who on this account comes off as a man who cares more about his and the Court’s reputation among legal elites than about enforcing the Constitution. And obviously, the reputational boost among liberal elites comes at the cost of reputational harm at the hands of their conservative and libertarian counterparts. Many will not soon forgive Roberts, especially if additional evidence comes [...]

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Chief Justice Roberts and Constitutional Avoidance

At, Nicholas Quinn Rosenkranz has an excellent post on Chief Justice Roberts’ use of the canon of constitutional avoidance in NFIB v. Sebelius. As Professor Rosenkranz notes, “The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd.” Specifically, the Chief used the canon not to resolve a statutory ambiguity, but to construe a statutory provision in a way other than it was written.

when the Chief Justice “interprets” the mandate to be a tax, this is not interpretation in the ordinary sense. This is, in reality, an issue, not of statutory interpretation, but of constitutional characterization. The Chief is not interpreting the meaning of a statute to avoid a constitutional problem. Instead he is characterizing a statute—whose meaning is not in doubt—to be a tax for purposes of the Constitution. . . . The canon of constitutional avoidance only applies when a statute is ambiguous—that is, when it is unclear what rights and duties the statute creates. Since there is no such ambiguity in the individual mandate, the canon does not apply.

As a consequence, Rosenkranz argues, once Roberts concluded that the mandate, as written, was a penalty, not a tax, that should have been the end of the matter.

Over at ElectionLawblog, Rick Hasen comments that however bad the Chief Justice’s application of the avoidance canon was in NFIB, it was worse in NAMUDNO v. Holder, where the Chief wrote an opinion for eight justices that adopted a strained reading of Section 5 of the Voting Rights Act to avoid confronting the question of its constitutionality. In Citizens United, on the other hand, Roberts joined the majority in refusing to adopt a narrowing construction of the statute, and authored a concurring opinion stating that the Court should [...]

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Left, Right, and Judicial Review

Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.

There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.

Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.

For at least 30 years, many conservative scholars and jurists have also been urging strong judicial enforcement of constitutional property rights. Rehnquist was a leader on that issue too, notably in his dissent in the key 1978 Penn Central case, which [...]

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“Statesmanship” and the Individual Mandate Decision

In this recent post, political scientist Steven Teles argues that Chief Justice John Roberts’ decision to uphold the individual mandate was motivated by “statesmanship”:

[M]y guess is that Roberts would have joined a decision more or less striking down the mandate but severing it from the rest of the law, but he couldn’t get the rest of the four justices to go along with him. So he ended up having to cut a deal with the liberals….

Roberts, no doubt influenced by his position as Chief Justice, made the call that he could pull at the seam of the law pretty hard but couldn’t unravel it completely. Doing so really would put the Supreme Court in a state of outright war with the Democratic Party. There is an element in Supreme Court decision-making that can be explained by statesmanship rather than jurisprudence. Law professors are unlikely to be very impressed with that element, but it’s a real, permanent and unavoidable aspect of our system of government. On no really important aspect of jurisprudence did Roberts actually break from his conservative brethren, but he did make a different political judgment than they did—not on what the Court could get away with, but what was really appropriate for it to do on a matter of such great policy significance.

Like Teles, I don’t doubt that political considerations influence Supreme Court decision-making, though, in all but very exceptional cases, I take a dimmer view of such decisions than he does. I am a big fan of Teles’ academic work on legal issues. But the particular scenario he envisions in this case is unpersuasive.

If Roberts believed that the individual mandate should be invalidated, but severed from the rest of the law, he did not need the support of the other [...]

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