My Take on the Individual Mandate Litigation

It hasn’t changed since I wrote the following almost a year ago: What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.

The modern Supreme Court is reluctant to directly overrule precedents, especially well-entrenched precedents, but is not at all reluctant to distinguish precedents, even when the distinctions in question are quite strained. I could present many examples, but just consider, for example, how Boy Scouts of America v. Dole turned out not to be governed by Roberts v. United States Jaycees; the Court distinguished Matthews v. Eldridge from Goldberg v. Kelly; or how the Court has gone back and forth between relying on Mulligan and Quirin in detainee cases without overruling either one of them, or really explaining how they don’t contradict each other.

So now that the opponents of the individual mandate have manged to make arguments that pass the laugh test, the Supreme Court’s ultimate decision will involve such factors as: (1) How popular will the individual mandate, and health care reform more generally, be when the Court takes up the issue?; (2) How popular will President Obama be at that time? (3) The Republicans on the Court will undoubtedly be less likely to support a law passed with only Democratic support; (4) Will Justice Kennedy be more in the mood to be susceptible to the “Greenhouse Effect,” or to cement his conservative credentials, which in part will depend on, “How close to retirement is he?” (5) Does Justice Scalia think that invalidating the individual mandate will somehow hurt the cause of ultimately overruling Roe v. Wade, something that I think is always on Justice Scalia’s mind? (6) Will the Republican House and the expanded Republican minority in the Senate show in any way that they take federalism and limited national government seriously, the way the Contract with America undoubtedly made Lopez more viable, and the Big Government conservatism of the Bush Administration helped lead to Raich? (7) Will the Court have other issues before it on which the conservative Justices would rather spend their political capital? And so on… UPDATE: [8] I left out a crucial factor: If the liberals on the Court, like the dissenters in Lopez, are unable to articular a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.

Looking at these factors a year later: (1) The mandate is unpopular, and less popular than ever; (2) Ditto for the president; (3) no change; (4) Kennedy seems to have no intention of retiring; (5) there has been a conservative backlash over Scalia’s decidedly non-originalist opinions in Raich and McDonald, which has eroded Scalia’s standing among Federalist types in favor of Thomas as the new standard-bearer. I can’t imagine that Scalia is completely oblivious to this, or to the fact that a vote upholding the mandate will erode his standing further, but the Roe v. Wade question lingers; (6) the Republicans have not shown that they take federalism at all seriously; (7) there are no other issues of similar magnitude before the Court; and (8) this remains to be seen.

Also, consider this line: “Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.” A conscientious circuit court judge, particularly one who, like Judge Silberman, has a lot invested in his reputation as an advocate of judicial restraint, could quite plausibly find that the best interpretation of precedent supports the constitutionality of the individual mandate. But when the case gets to the Supremes, the only relevant question is whether prior precedent clearly dictates upholding the mandate. I think the answer to that has been shown to be “no,” given all the opinions going the other way.

In short, I think the factors I enumerate are far more likely to affect the Court’s ultimate decision than whether Judge Sutton or Judge Silberman voted to uphold the mandate. I’m still not terribly optimistic that the mandate will be invalidated, but not because of the lower court opinions.

UPDATE: A clarification: I think likely all the conservative Justices on the Court think that if they were deciding things as an initial matter, without any relevant precedents and no political constraints on the Court, that the mandate would be unconstitutional as beyond Congress’s power under the Commerce Clause. The constraints of both politics (in the broad sense of the word, including the Court being wary of preserving its authority and so on) and judicial culture (respect for precedent) are what would prevent the Court from invalidating the mandate. So I’m not arguing that the majority would invalidate the law because it suits them “politically.” I suspect that they all really think the law is unconstitutional but because of precedent and politics they need the right political environment to say so. If, for example, both the law and Obama were polling at 70%+, and the law had been passed with significant Republican support, and some of the leading Republican candidates supported the law, the chances that the Court would invalidate it would be approximately zero, regardless of the Justices’ views of its constitutionality. Maybe Thomas would dissent.

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