On Tuesday, March 27, the Supreme Court will meet for the second day of hearings on constitutional issues surrounding the new federal health care law. This is the second of four articles that will appear on the blog this week, previewing the issues that the Court has agreed to review. These articles appear in the order that the Court is to hear the issues. Tuesday’s argument, on the constitutionality of the individual insurance mandate and its attached penalty, will start at 10 a.m. and will continue for two hours. Defending those provisions and arguing first will be Solicitor General Donald B. Verrilli, Jr., with one hour of time. The challengers to the new law will respond, dividing a second hour equally: Paul D. Clement of the Washington law firm of Bancroft PLLC, representing 26 states, followed by Michael D. Carvin of the Washington office of the Jones Day law firm, representing the National Federation of Independent Business and four individuals, who are Federation members. (NOTE: This blog provides a full array of background materials on the health care case, at this site.)
After decades of trying, without success, to find a way to expand health care coverage and get control of rising treatment costs, a Democratic-controlled Congress in 2010 passed the Patient Protection and Affordable Care Act — with only Democrats voting for it. The massive new law was controversial at every step of its passage, and remains so two years after President Obama signed it on March 23, 2010. Without the votes to enact some version of a government-run “public option,” Congress turned instead to an overhaul of the entire nationwide market for health insurance. A basic issue, as always, was how to pay for such an ambitious social venture — and to do so without pushing insurance premiums so high that only the wealthiest could afford to insure. At the heart of the approach that Congress selected is the new law’s Section 1501 (now codified as Section 5000A): popularly, it is known as the “individual mandate”; technically, it is labeled the “minimum coverage provision.” It would require most Americans to obtain health insurance by January 1, 2014, or pay a financial penalty — perhaps as high as $3,000 — with their tax return. On Tuesday, the Court will explore whether the Constitution gave Congress the power to impose such a “mandate.”
A highly respected federal judge who ultimately concluded that Congress did have the authority to adopt the mandate as written, Circuit Judge Jeffrey S. Sutton of Columbus, Ohio, nevertheless laid down a challenge for the Supreme Court to ponder when the controversy reached that level. “The Court,” he wrote, “should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so.” It is fairly easy to argue (though some do debate it) that the individual mandate is a proper policy initiative to test whether there is such a limit, because of its unique nature and its reach deep into the lives of tens of millions of Americans. It thus is no surprise that the case before the Court on the Affordable Care Act (as it is popularly known) has attracted — on this provision alone — 80 written briefs beyond those filed by the Obama Administration and the challengers themselves: a great many are trying to influence the outcome.
It may be somewhat difficult for the nine Justices (and all nine do plan to participate) to stay focused exclusively on the legal points and counterpoints when they are reminded, almost daily by the mass media, that they will be reviewing the constitutionality of the mandate in the very midst of a presidential election campaign in which the health care law itself is one of the hottest issues, as is the underlying question of how big the federal government should be allowed to be — a question that has fascinated and bedeviled Americans since the Founding Generation.
Very much is, indeed, at stake. But, in a sense, the Court probably could decide the fate of the mandate by choosing one of two, fairly simple narratives that are being laid before it. As the federal government tells the story of the mandate, Congress did no more than it has done countless times in the past, when it has seen a national problem coursing through the entire economy, and devised a national solution. The ACA and its mandate involve a regulation of commerce — no more, no less, the government insists. From the 26 states and other challengers, the story line is that the mandate is all about individuals’ liberty and their right to remain within the privacy of their own existence and not be compelled to venture out into the marketplace to buy something they do not want. Congress can regulate commerce, but, the states insist, it cannot create it, since it has no power to drum up business for private insurance companies.
There is, of course, a world of difference politically — and legally, too — between those two narratives. The Court will leave the political debate about those differences to others; a vote of the people on that will be taken on November 6. In considering in the meantime how to resolve the legal debate, the Court appears to have no solid prior precedent that would easily guide it to a conclusion, even though it has ruled many times on Congress’s power over commerce. It thus may find itself mostly starting from scratch — in other words, going back to first principles about the nature of the Republic as it exists in the Constitution’s 225th year. It would be a mistake not to see this controversy in those momentous terms.
The overall law is 2,700 pages long, but the Court has limited itself to four constitutional issues aroused by the law, and three of those have to do in one way or another with the individual mandate. Next Monday, it will review whether anybody had a legal right to challenge the mandate; the blog previewed that argument yesterday. Next Tuesday, the mandate itself faces its constitutional test (with the Justices assuming, at least for that day, that they do have the authority to settle that test). On Wednesday morning, the Court will assume — for that day — that the mandate will fall, so it will weigh what other parts of the ACA, if any, must fall with it. (On Wednesday afternoon, the Court faces the one granted issue not directly tied to the mandate, although the state challengers say it is so linked: the constitutionality of a broad expansion of coverage of the poor under the federal-state Medicaid program.)
First, a few facts about the mandate and its attached penalty. Having turned away from a government-run option, Congress contemplated how to do three things and still preserve the private health insurance industry: (1) achieve near-universal health insurance by devising ways to arrange coverage for some 50 million who don’t have it now; (2) take away the insurance companies’ choice not to cover some people who are ill, have been ill, or are prone to be; and (3) get all of this done at “affordable” insurance rates. It concluded that insurance companies could afford near-universal coverage without charging very high premiums only if they had a sufficiently large pool of policyholders paying premiums themselves or having someone pay premiums for them. The mandate that all Americans (with a few exceptions) obtain health insurance by the year 2014 was crafted as the generator of that pool. And to draw people to that pool, Congress chose an incentive: a penalty for failure to get the insurance, with the penalty calculated by one’s taxable income and payable to the IRS, not just once but until they obtain coverage. The insurance industry, once an implacable foe of new health care financing legislation, went along, as did much of the medical profession (so long opposed to what it considered to be “socialized medicine”).
The Obama Administration defends the constitutionality of these provisions with three separate theories: the requirements are valid under the Commerce Clause, they also can be defended under the Necessary and Proper Clause as it buttresses Congress’s commerce power, and they are a valid form of tax legislation under the General Welfare Clause. The challengers say that the mandate and penalty do not regulate commerce but only try to force people into commerce, so those provisions are not necessary to any such regulation, and they are not tax provisions at all.
Within seven minutes after President Obama signed the ACA into law, the first of perhaps 30 constitutional challenges went to court. After initial but partly unsuccessful efforts by the Justice Department to head off most of the challenges for procedural reasons, District Court judges started reaching conflicting decisions about the validity of the ACA and particularly the constitutionality of the mandate. The cases then moved to the Circuit Courts, again with mixed results, setting the stage for Supreme Court review that nearly everybody assumed was inevitable. The Justice Department did not use its options of slowing down the progress of the cases toward the Supreme Court, indicating that it, too, wanted a prompt decision.
In the Circuit Courts, those that upheld the mandate and penalty did so mainly under the Commerce Clause, and the one that struck it down found that neither the Commerce Clause nor the Necessary and Proper Clause nor the General Welfare Clause gave Congress authority to adopt those measures.
Petitions for Certiorari
Those who had lost in the appeals courts began moving to the Supreme Court in July, and petitions arrived as late as November 30, after the Court had already agreed to take on at least some of the constitutional questions. On November 14, the Court chose three of the then-pending petitions for review. All of those were appeals from the Eleventh Circuit Court, which had struck down the mandate and penalty (thus agreeing with a Florida District Court judge) but finding no constitutional defect with any other parts of the law (in contrast to the District judge, who had concluded that the entire ACA was invalid because it all of it was tied to the mandate).
Twenty-six states’ petition, in Florida, et al., v. Department of Health & Human Services (docket 11-400), challenged the mandate’s constitutionality, and argued that no part of the ACA could survive. The National Federation of Independent Business and individual members’ petition, in NFIB, et al., v. Sebelius, et al. (11-393), focused mainly on the claim that no part of the ACA could remain once the mandate failed. The federal government’s petition, in Department of Health & Human Services v. Florida, et al. (11-398), challenged the Eleventh Circuit’s ruling against the mandate. None of the three argued that the challenges to the mandate were barred by the federal Anti-Injunction Act, but the government petition suggested that the Court take on that, too. From those petitions, the Court chose the questions about the mandate and its “severability” from other ACA provisions, plus the Anti-Injunction Act’s impact, and also said it would rule on the Medicaid expansion (another issue raised by the 26 states). Other pending petitions were simply left for action until after the Court had ruled on the granted petitions.
Thus, as matters turned out, the first case to be filed among the 30 stirred up by Congress’s passage of the ACA — the Florida case — was the only one the Court agreed to hear.
Briefs on the Merits
The federal government’s brief on the merits, from its very beginning, sought to portray the issue as one related to the regulation of commerce — period. It began: “Congress enacted the Patient Protection and Affordable Care Act…to address a crisis in the national health care market. Spending in that market accounts for 17.6 percent of the Nation’s economy.” In a real sense, everything that follows, for 62 pages, is secondary to that opening thrust. It is both theme and substance. If the Court accepts that that was what Congress was doing, not only in the passage of the individual mandate in the ACA but in its earlier failed efforts to change the health care market (which the government brief recalls), the government might well be on its way to having the mandate upheld. Much history, including modern history, attests to the sweeping nature of Congress’s authority over commerce among the states, and the government brief relied heavily upon those precedents.
If this is commercial regulation, the actual means that Congress chose to jump-start the new insurance regime (the mandate) is valid if it can survive the most tolerant constitutional test, rational basis review. The government brief sought to push the mandate through that test by first recounting the overall goal that it said Congress had pursued — expanding coverage of health care and controlling the cost of insurance by changing industry practices fundamentally — and then it turned to the mandate. That requirement, and its enforcing penalty, the brief contended, play “a critical role in that comprehensive regulatory scheme by regulating how health care consumption is financed.”
Rather than wait until medical care is needed (which everyone will experience, sooner or later) to get insurance, the government asserted, the ACA creates an incentive to obtain insurance in advance, “the customary way of paying for health care in this country.” The mandate, producing a pool of new policyholders, is the key, according to the brief, to making two goals of ACA actually achievable: requiring insurers to offer policies even to people with pre-existing conditions, and putting strict limits on the companies’ opportunity to go on raising premiums to cover the new risks. Continuing the commerce-related argument, those goals involve “market reforms” that will “end discriminatory practices under which millions of Americans are denied coverage, or charged unaffordable rates, based on medical conditions or history,” the brief said.
Noting that some states had tried to adopt those market reforms but without attaching to them a mandate to have insurance, the government argued that the state initiatives failed because they led to higher costs and reduced coverage. Under that approach, the filing added, people could wait to get insurance until they got sick, a point at which it, obviously, would cost more.
Using language from prior Supreme Court precedents on Congress’s commerce powers (including language written by some of the Court’s current conservative Justices), the brief argued that the mandate “is within Congress’s power to enact not only because it is a necessary component of a broader scheme of interstate economic regulation,” but also because it regulates economic conduct: that is, individuals’ choice about how they will pay for health care. Those who do not have insurance, the government argued, do take part in the “health care market” when they get sick and therefore obtain care, but when they do, payment for it is shifted to someone else. In 2008, using a now-familiar set of figures, the brief said, the uninsured in 2008 got $116 billion worth of health care, and did not pay for $43 billion of it. That shift put higher premiums, up to about $1,000 per family, on those who were insured, according to the document.
In language surely pleasing to economists (and hopefully to Justices who appreciate economic theory), the brief said that this shift meant that the insured “as a class presently externalize the risks and costs of much of their health care.” In language of the street, that means either “free riding” or letting my neighbor pick up my tab. The brief went on to say that the mandate “will require that they internalize” the risks and costs or else pay a penalty, adding: “That is classic economic regulation of economic conduct.”
The brief also sought to counter the Eleventh Circuit majority’s conclusion that Congress should have ordered those who obtain medical treatment to pay for it, with insurance, when they do get sick. There is “no constitutional principle” that supports that limitation on the means Congress can choose, the government argued. Besides, the reality of insurance norms is that one pays for it well in advance of needing it, according to the brief. It accused the Circuit Court, therefore, of insisting upon “the now-discarded approach to the commerce power under which the Court attempted to impose semantic and formalistic limitations on its exercise.”
The brief wound up with the government’s back-up defense, that the mandate and its penalty are valid under the power to tax that Congress has under the General Welfare Clause. (The government brief does not spend much effort on its continuing argument that the 26 states who challenged the mandate did not have a legal right to do so, because it does not apply to them as states. The states still dispute that argument, contending that they will be directly affected by the mandate because that provision will lead more people into the Medicaid system, with drastic budgetary consequences for the states. In any event, some of the private individuals who joined in the challenge are conceded, on all sides, to have “standing” to make their challenge.)
Turning from the government brief to the challengers’ merits briefing, the contrast is immediately clear. The alternative narrative of the mandates’ challengers leaped out from the first paragraph of the 26 states’ brief on the merits: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.” From there, it quickly summoned up the perceived threat to individual liberty. The mandate’s threat to liberty, it argued, is “obvious…The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’s authority to regulate existing commercial intercourse. It is a revolution in the relationship between the central government and the governed.”
Not only will individual liberty be threatened by the mandate, the states said; so, too, will be “our basic constitutional structure,” the sovereignty of the states, and “government accountability.” The accountability point is explained as a threat that supposedly would flow from disguising taxes as something other than increased tax obligations, and treating heavy new regulation of the insurance industry as no more than an enticement to get them to go along. If the mandate and the regulatory regime were acknowledged to be what they really are, the “democratic process” would not be misled as it has been, the brief suggested.
The states urged the Court to check “this first assertion” of “unbounded power,” assuring the Justices that doing so would endanger “no other legislation” and would not threaten health care policy because there are “ample constitutional — though perhaps not politically feasible — alternatives to the mandate.”
Both the individual liberty and state sovereignty arguments are keyed to the basic claim of the state challengers — that is, that Congress was not attempting to regulate commerce but to create it by compelling unwilling individuals to go into the marketplace. “An individual,” it argued, “can do very little to avoid the long arm of the federal government other than refrain from entering into the commerce that Congress may regulate. If Congress not only can regulate individuals once they decide to enter into commerce, but can compel them to enter commerce in the first place, then there is nothing left of the principle that Congress’ powers ‘are defined, and limited,’ [citing Marbury v. Madison], as Congress could simply force within its regulatory reach all those who would remain outside it.”
If Congress can get by with such compulsion, the states contended, it will have assumed an authority that “smacks of the police power, which the framers reserved to the states.” For the first time in history, the brief asserted, Congress had sought to undo that assignment of authority to the states and assume it for itself. The fact that Congress had never attempted it, in the first 220 years of its existence, shows that Congress previously had recognized its limits in this regard — but no more.
The 26 states also brought out the familiar complaint of the challengers, that if Congress gets permission to enact such a mandate, it can do so for any area of the economy, such as ordering people to buy new cars in order to rescue the auto manufacturing industry. “The only explanation for the utter absence of comparable mandates,” they argued, “is the utter absence of constitutional authority to enact them.”
Reacting to the government’s description of the mandate as purely an economic regulatory mechanism, the states contended that the mandate is not at all about paying for health care services; rather, the brief said, it only compels the purchase of insurance, with no requirement that the individual ever actually use that insurance to cover a medical treatment. And the states insisted that, merely because Congress does have the authority to regulate the interstate insurance market, it is not at liberty to choose as a supporting form of compulsion a requirement that individuals move into that regulated field against their will. That kind of compulsion is neither supported by the Commerce Clause, nor by the Necessary and Proper Clause; there is nothing about the mandate that is “proper,” according to the states.
The states also directly disputed the claim that the General Welfare Clause cleared the way for such an intrusive congressional gesture as the imposition of the mandate. Despite the government’s switch in position to now defend the mandate under Congress’s taxing power, that provision is simply not a tax, the states asserted. Noting the unwillingness in Congress generally to impose new taxes, the states argued that the government cannot rely upon Congress’s reluctance to tax as a maneuver to get a new measure passed by calling it something that it isn’t, and then turn around in court and call it a tax in order to locate authority for it in another part of the Constitution.
The merits brief of the Business Federation and its members endeavored to persuade the Court that the mandate actually would not work as the government claimed — that is, it would not actually lead people previously without insurance to start paying for care rather than shifting the cost to someone else. “The overwhelming majority” of care that is not paid for, this brief asserted, goes to individuals who are not covered by the mandate — either because they will voluntarily obtain insurance under other incentives written into the ACA, or because they are excluded from the mandate by one of the several exceptions Congress wrote into the law.
Congress did not embrace the mandate in order to make those who got care pay for it, the business brief argued, but rather to compel “immediate subsidization of insurers and their voluntary customers.” Under the terms of the entire ACA, this brief said, those forced to buy insurance to avoid the penalty will pay more for it than they otherwise would in order to give an advantage to the insurance companies and the customers they already have. The business brief, on behalf of small businesses that are themselves customers in the insurance market, repeatedly assailed the insurance industry’s embrace of the new law’s regulatory mechanisms and the mandate in particular. The government’s arguments in favor of the mandate, the business group asserted, ignores the fact that Congress was principally concerned with subsidizing those who sell health insurance. “The mandate’s predominant purpose and effect,” the brief contended, “was….to conscript the uninsured to provide a $38-39 billion annual subsidy to insurers and their customers.”
The Federation brief’s arguments against a taxing power justification, and about the threat to states’ sovereignty, parallel those made in the 26 states’ brief.
The amicus briefs
Under the Supreme Court’s Rule 37, lawyers representing groups or individuals not directly involved in the case are told that amicus briefs they file “may be of considerable help to the Court,” provided that they bring to the Court’s attention “relevant matter not already brought to its attention by the parties.” Otherwise, the Rule says, an amicus brief “burdens the Court and its filing it not favored.” The insurance mandate alone has drawn 80 of those briefs, numerically weighted somewhat more on the side of the challengers. In this instance, if the amici are to do what the Court wants them to do, their principal function would seem to be to help the Court choose one of the two narratives outlined by the combatants.
Briefs supporting the mandate:
The government’s main argument, that the mandate involves a regulation of commerce that breaks little new ground economically, drew enthusiastic support from a host of professors — of constitutional law, health policy law, economics, and taxation — all arguing that the question is not really a difficult one. Much of the commentary of the economics professors focused on the “free-rider” issue of the uninsured claiming free care when they do get sick; that issue also drew support for the mandate from hospitals and health clinics who claimed they have to absorb a lot of those costs, and from doctors and nurses providing the care.
To acquaint the Court more fully with the history of efforts to solve the twin problems of the uninsured and rising health care costs, there are briefs from 34 historians in this field — including Princeton’s Paul Starr. the author of the recently published (Yale University Press) book, Remedy and Reaction: The Peculiar American Struggle Over Health Care Reform — and from the state of Massachusetts and others familiar with the pioneering effort of that state in passing a health care law similar in some key respects to the ACA, and its mandate.
A number of briefs came from what were called “at-risk” or medically underserved and vulnerable populations, such as children, people with chronic illnesses or rare diseases, the disabled, the elderly, women, young adults, the poor and minorities, all of whom asserted that they would be benefited from having the mandate and the guarantee of near-universal coverage for the first time.
The policy interest in having the federal government actively dealing with what is described as an interstate problem is the topic of briefs from the Democratic leaders of Congress and of key congressional committees, who insisted that they paid close attention to constitutional limits in enacting the mandate and the ACA, from 518 members of state legislators including some from each of the 26 states challenging the mandates, and from a dozen states and Washington, D.C. Also seeking to offset the challenge by the National Federation of Independent Business, a trade group of small businesses, there are competing briefs from small business owners claiming to be hard hit by rising health care costs and insurance premiums.
The challengers’ basic point that the mandate is a threat to individual liberty drew protesting briefs from groups representing minorities and the poor, arguing that the liberty of those without health insurance or access to good health care is threatened by the absence of a national solution.
Briefs challenging the mandate:
The centerpiece of the challengers’ argument against the mandate — the threat they perceive to individual liberty — is clearly the dominant theme of the more than 40 briefs taking that side in the case. It recurs in briefs filed by groups ranging from state legislators to women who regret having had abortions to Roman Catholic voters to gun rights advocates to more than 119 members of the U.S. House of Representatives, and others.
Sometimes, the arguments are quite colorfully made. The state of Oklahoma, for example, suggests that what Congress has done in adopting the mandate is to treat “a 20-year-old woman in Norman, Oklahoma, engaged in no commerce at all,” as the equivalent for government regulation of “an 18-wheel truck transporting goods on interstate highways.” Missouri’s state attorney general, Chris Koster, argued that, if Congress had power to pass this mandate, it could also have penalized Henry Thoreau for idling away his time at Walden Pond instead of fishing, on the theory that “everyone has to eat.”
Most of the liberty arguments, of course, are far more serious, putting the issue in truly apocalyptic terms, such as a complaint that Congress has brought about “totalitarian control of a vitally important and deeply personal matter” or that it has passed a law “from which there is no escape.” There is also a brief contending that the mandate is an unconstitutional “bill of attainder” — legislative punishment without a trial.
When the amici on this side of the case move to discussion of the constitutional limits on national legislative power, the foreboding is along the same lines, such as the protest that the mandate “threatens to eviscerate the doctrine of enumerated powers upon which the federal government was established.”
There are briefs that urge the Court to examine new scholarly learning about such things as the origin of the Constitution’s Necessary and Proper Clause, and the common law of contract — embracing a concept of “mutual assent” — at the time of the Constitution’s drafting.
There is, among these amici, a distinct disagreement about whether the Court should now accept as established the whole body of precedents about the scope of Congress’s Commerce Clause power, or whether it should start all over. At least four of the amicus briefs argue explicitly that the Supreme Court should overruled its decision in 1942 in Wickard v. Filburn, on the premise that it is the foundation of too expansive an interpretation of that power. Others even suggest that Chief Justice John Marshall went too far in McCulloch v. Maryland, in 1819. Among those calling for overruling of Wickard is a freshman Republican in the U.S. Senate, Kentucky’s Rand Paul, a founder of the Senate Tea Party Caucus.
The challengers’ separate argument that the mandate will undermine state sovereignty is echoed in briefs from the 14 states that now have laws that seek to protect their citizens from having to obey the mandate, in a brief by the state of Virginia — an early challenger of the mandate — contending that the provision “abolishes states’ traditional authority to regulate health insurance,” and in various briefs from organizations and individuals devoted to defending states’ reserved powers under the Tenth Amendment.
Similarly, the challengers’ argument that Congress is attempting, for the first time, to force people into commerce rather than regulating existing commerce is embraced by a wide array of organizations and advocates, such as the libertarian Cato Institute, joined by 333 state legislators in 17 states, and by 43 Republican members of the U.S. Senate. House Speaker John Boehner, an Ohio Republican, joined in the case for himself, contesting any attempt by the law’s defenders to rely upon the Constitution’s Necessary and Proper Clause.
And the challengers’ point that the mandate will not work as Congress expected is strongly endorsed by 215 economists, who contended that the mandate is only an attempt to regulate healthy individuals, and will not even apply to millions of individuals who will have someone else pay most of their costs — such as Medicaid recipients — even as they are among the heaviest users of health care.
There are also amicus filings by groups that have their own organizational interests primarily in mind, like the Employer Solutions Staffing Group, an agency for temporary employees with offices in 25 states, arguing that the new law and its mandate will seriously complicate the ability of part-time workers to get health care coverage, and also a group that is disappointed that Congress did not adopt the idea of a national, publicly financed “single payer” system in which there is one health insurance system with a single public entity handling billing and all other administrative tasks.
The new controversy over whether employers with religious or moral convictions against birth control must provide insurance for such coverage — an issue that is not before the Court — made its way into the case in the brief filed by a religiously oriented university, Liberty University of Lynchburg, Va., which has its own petition pending at the Court on the mandate issue (the Court is holding that petition until it decides the granted cases).
It seems quite rash to argue that this will be an easy case for the Court, as some observers do. Those observers, though, are among those who favor the mandate as a matter of social policy, and their constitutional theorizing flows from that preference. It seems equally rash to say that the decision on the mandate will inevitably break down along ideological lines, with the conservatives on the Court voting to strike it down, and the liberals voting to uphold it. Those predictions flow from the perception that this is a very politicized Court, mired in ideological conflict.
Moving away from those simplistic expectations, a good starting point could be the realization that the Court certainly knows that it is confronting a historic moment, and appreciates fully the need to rise to the occasion. Not many cases with consequences this deep and pervasive come along, even in a lifetime of judging, and a Justice worthy of holding the job senses that such occasions demand measured judgment, along with a healthy skepticism that one’s predecessors have already settled the matter with binding precedent.
Lower courts, of course, were bound by the prior precedents, such as they are. But the Court, if the occasion demands, can move off in new directions. The Court may not accept uncritically the suggestion of the challengers that the Court need not worry about unsettling a lot of constitutional law, on the theory that the mandate is so obviously a novelty that it can be nullified with surgical precision. And neither may it accept uncritically the suggestion of the government that the Court has seen such a law many times before, so all it need do is apply clearly established constitutional doctrine.
The reality is that the Court probably will have to return to issues of fundamental constitutional design, to see where the mandate does, or does not, fit. It has been presented, in the parties’ and the amici briefs, with a great deal of rhetoric and argument on the Founders’ vision about the division of governmental authority. But, for the Justices, they will have their own ideas about that vision. Some will see it in originalist terms, and some will see it as prophetic of future times.
With superbly crafted written materials, on both sides, and very likely high quality oral arguments to come, the lawyers will have done what they could do to shape the Court’s interpretation of the Founders’ vision and what has become of it since. What the lawyers have done, though, is present the Court with choices for which there is no apparent middle ground, no clear basis for compromise. The narratives — on one side a story that liberty itself is on the line, on the other a technocratic tale of modern economic management — have no evident overlap. The former has real emotional appeal, the latter intellectual attraction. It is far from clear which is the way toward judicial wisdom.