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Today’s argument in Plain English: Will the mandate squeak by?

This morning the Court reconvened to hear two hours’ worth of oral arguments on the question at the heart of the battle over the Patient Protection and Affordable Care Act (ACA):  whether the government can require virtually all Americans to obtain health insurance by January 1, 2014 or face a penalty.  Although this question had long been regarded as the “main event” of the three days that the Court will devote to oral arguments on the ACA, it gained even more significance (to the extent that such a thing is possible) after yesterday’s argument, in which the Justices signaled that they are not likely to let a little-known nineteenth-century law deter them from reaching the merits of today’s question.  And after today’s argument, it is not at all clear whether the mandate will survive.

First up this morning was the federal government’s top lawyer, U.S. Solicitor General Don Verrilli, to defend the constitutionality of the provision commonly known as the “individual mandate.”  He began his one hour before the Justices by emphasizing that the ACA was intended to address a “fundamental and enduring problem in the health care system and our economy”:  the health insurance market does not provide affordable health insurance to forty million Americans.

But four members of the Court’s more conservative wing – Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito – quickly began to pepper Verrilli with questions that centered around three themes.  First, the Justices responded to the government’s argument that, by imposing the mandate, Congress was merely regulating how and when people pay for health care.  Justice Kennedy in particular seemed skeptical of this proposition, suggesting several times (as did Justice Scalia at least once) that rather than regulating commerce, the law was in fact creating commerce to regulate.  Wouldn’t such a move, Justice Kennedy asked, be an unprecedented change in the relationship between the government and the individuals?  Verrilli responded that the mandate was not creating commerce; because everyone is either in the market for health care or will be at some point, the mandate simply regulates how and when people pay for that health care.  Moreover, he emphasized, health care is unique in that people often have no control over when they need care.

That line of argument then led to another set of questions on a topic that clearly concerned several Justices:  if Congress can do this, is there anything that it can’t do under the guise of regulating commerce?   The Chief Justice, for example, told Verrilli that the government’s argument would apply equally to emergency services, such as those provided by the police or fire departments.  And if so, he continued, could the government make everyone buy a cell phone to be ready to call 911?  Other Justices also tried to flesh out how far the government’s position would go, and what else the government could require people to do (including, about twelve minutes in, the often-discussed question whether the government can compel us all to buy broccoli).

Trying to reassure the Court, Verrilli returned to the unique nature of the health care problems with which Congress had grappled.  Here, he reiterated that, unlike the other examples that the Justices cited, someone who doesn’t buy health insurance will still get health care, but others would have to subsidize the costs that he can’t afford.  This, however, prompted questions from the Justices about how the mandate actually works.  Justice Alito asked Verrilli whether the mandate would simply make some people who had previously been insured bear the costs of their own health care through insurance, or whether it would take the additional step of forcing healthy people who would not otherwise buy health insurance to subsidize the health care that everyone else receives.  And along the same lines, several Justices pressed Verrilli on whether the mandate would require the people to buy insurance that would cover more health care services than they would actually need – for example, the Chief Justice observed, not everyone would need pediatric or maternity benefits.  After a series of questions intended to shed light on whether the mandate could also be upheld because Congress had relied on its power to tax to enact it (even though Congress labeled the fine that must be paid for failure to comply with the mandate a penalty rather than a tax), Verrilli sat down.

When Verrilli’s time came to a close, the Court’s four more liberal Justices had asked him only a few questions, and the ones that they did ask were mostly friendly.  But even if those four seemed likely to uphold the mandate, it was not at all clear where the government might find a fifth vote to sustain the mandate.  Were all four of the more conservative Justices who asked Verrilli questions this morning genuinely opposed to the mandate?   (The fifth member of the Court’s more conservative Justices, Justice Clarence Thomas did not ask any questions.)

After a seventh-inning stretch of sorts to account for the unusually long argument, next up was a former Solicitor General, Paul Clement, who is well on his way to becoming a conservative icon.  And if supporters of the mandate  had hoped that at least one of the Justices who had pressed Verrilli might do the same for Clement, they were mostly disappointed, as the questions came primarily from the Court’s four liberal Justices – Ginsburg, Breyer, Sotomayor, and Kagan.

Clement began his argument by emphasizing two of the themes raised by the Justices during the first hour of argument:  in enacting the mandate, Congress was not regulating commerce but instead trying to create commerce; and, if the mandate is upheld, there will be virtually no limits on what Congress can do using its power to regulate commerce.

Some of the Justices’ early questions to Clement focused on his concession that the government could require everyone to have or buy health insurance at the point that they seek health care.  When asked by Justice Kagan whether the question was therefore just a “matter of timing,” Clement pushed back, arguing that such a system would leave out the people whom “Congress very much wanted to capture” to subsidize the costs of insurance:  the healthy people who didn’t plan to need health insurance anytime soon and didn’t intend to buy insurance.

Clement then turned to a lengthy (occupying two full pages of the transcript) question from Justice Breyer about whether and why it matters that the mandate affirmatively requires people to do something.  He told the Court that it was significant, and even “telling,” that it had not had to decide another case like this one, even though Congress had certainly faced other scenarios in which it would have been easier to accomplish something more efficiently by creating an affirmative obligation to do something.  For example, he suggested, instead of trying to bail out the U.S. auto industry with the cash-for-clunkers program, Congress could have required everyone with a certain income to buy a new car.

Like Verrilli, Clement turned briefly at the end of his argument to the question whether the mandate is a tax and therefore permissible under Congress’s taxing power.  Clement denied that it wasn’t a tax, but added that even if it were, the mandate would still be unconstitutional because it would be the kind of “direct tax” that the Constitution prohibits.

The third lawyer to appear was Michael Carvin, representing the National Federation of Independent Business and several individual challengers to the mandate.  He began by warning the Court that upholding the mandate would “fundamentally alter the text of the Constitution” and give Congress virtually unlimited power.  And when asked by the Chief Justice about the government’s argument that the mandate is constitutional because everyone is in the health care market at some point, Carvin tried to shift the Court’s focus to what he characterized as the real problem in the health care market:  the people who receive health care that they can’t or don’t pay for, which he describes as “entirely different” from not having insurance at all.  Under the Constitution, he explained, Congress can regulate something that has a negative effect on commerce, but it can’t regulate something just because statistically it relates to something that might affect commerce — for example, in this case, because some uninsured people may need health care that they can’t afford, thereby passing the costs on to the rest of us.

With several Justices apparently dubious of the government’s arguments, two exchanges toward the end of Carvin’s argument stood out as potentially helpful to the government and may have given at least a glimmer of hope to the mandate’s supporters.  The first came from Justice Elena Kagan, who asked Carvin whether he might have an easier argument if he weren’t arguing that the mandate is always unconstitutional, but instead that the mandate is at least unconstitutional as it applies to specific people (for example, Christian Scientists) who clearly were not going to be a part of the health care market and, by declining to buy insurance, would not incur health care costs that would be shifted to the rest of us.  That line of reasoning might provide the Court with a way to uphold the mandate generally, while leaving open the possibility that individuals who object to the mandate could still challenge it.

The second, and possibly even more important, comment came from Justice Anthony Kennedy, a key swing vote on the Court.  Justice Kennedy appeared to voice some sympathy for the government’s argument that the health care market is “unique.”  Even if a healthy young person without insurance may not need health care in a particular time period, he reasoned, that young person will nonetheless be “very close” to having an effect on insurance rates – for example, on the theory that, as he ages, he will eventually need care that he can’t afford without insurance – in a way that just doesn’t happen in other markets.

During his four minutes of rebuttal, Solicitor General Verrilli tried to return the Court to the big picture, reminding it once again that Congress had enacted the ACA to deal with a “grave problem” and that it opted to do so (and rejected the permissible alternative of having everyone buy insurance if and when they need it) with a method that it knew would actually work.  This is exactly the kind of choice, he concluded, that the Constitution leaves to the democratic process.

Tomorrow morning the Court will return to hear oral argument on a question that it will have to answer if it concludes that the mandate is unconstitutional:  can any of the rest of the ACA remain in place, or does it all get thrown out with the mandate?  With the fate of the mandate uncertain after today’s arguments, this is an issue that many people will now be watching closely.  We will report back tomorrow, in Plain English.

Recommended Citation: Amy Howe, Today’s argument in Plain English: Will the mandate squeak by?, SCOTUSblog (Mar. 27, 2012, 7:14 PM),