Day Two of the Arguments

I would not hazard a guess on what today's oral argument portends for the future of the Affordable Care Act. It's dangerous to read too much into what the Justices say at argument and, as my NCAA brackets suggest, prognostication is not my forte.

We know the drill. Congress does not have plenary power but only those powers granted to it by the Constitution. What gives it the authority to require people to buy insurance?

Most of the argument today centered on the power of Congress to regulate interstate commerce. This is a power that has been interpreted quite expansively since the New Deal and may extend to activities that have an sufficiently strong impact on commerce or are necessary and proper to effectuate a Congressional scheme of regulation.

But I think it's fair to say (as I did on Charlie Sykes' show this morning) that a majority of the Court is concerned about the implications of upholding a law that regulates not existing commerce, but future commerce and that concerns itself, not with commercial activity, but with personal activity. These justices are looking for a limited principle.

I say a "majority" because there was little sign that the liberal wing of the Court is troubled by this at all. Justice Breyer, in particular, seems to have an expansive - I might even say unfettered view - of Congressional authority.

To my mind, the limiting principle suggested by Solicitor General Verelli is ad hoc and not persuasive. The idea is that health care is unique not simply because the failure to purchase insurance will drive up the cost for others but because the consequences of that failure will be borne by the community and not by the uninsured person. We will pay for his care whether or not he is able to do so.

Paul Clement, arguing for the 26 states who have challenged the law, seemed to have a rather strong response. The failure of someone to enter a market (in this case, by refusing to insure) will have an adverse impact on those in the market in any number of cases. If, for example, I choose not to buy a car, I will adversely affect the employment prospects of those who work in the auto industry. They may lose their jobs and go on welfare. If I do not buy an electric car, the price of those cars will stay high and fewer people will be able to afford them. The industry will be stillborn and whatever salutary impact on the environment more electric cars would deliver will be lost.

The government tried to save things by arguing that health care is unique in that almost everyone will need it at some time or the other. While there are other things that everyone needs - perhaps even more reliably than health care - such as food, shelter and clothing - the argument is that no one knows when they will need health care and the cost may be such that self insurance is not realistic.

There are still a few problems. First, it is not at all clear that everyone will need health care in this sense or that much of what the Affordable Care Act requires people to insure against fits the definition of unpredictable and catastrophic expenses. Routine health care may not be as predictable as the need to buy food, shelter or clothing but, over time, one can have a pretty good idea of what it will - or is likely - to cost.

Second, it is not at all clear that, even with this elaboration, Clement's point about the non-unique nature of health care is refuted. There are a number of things that might qualify such as, for example, retirement or disability. In fact, it is for this very reason that Congress enacted social security but, in that case, it imposed a tax and conferred a benefit - something that it could not get the votes to do here.

Finally, if health care is unique, why can't Congress mandate many other things that would affect that market other than mandate the purchase of insurance. Why can't it conclude that the failure to purchase healthy foods or belong to a health club imposes costs on other participants in the market justifying Congressional regulation?

There is more to be said but I think that the case may turn on whether or not Anthony Kennedy can be persuaded that there is a limiting principle. He did not appear to have settled on one during oral argument but, again, what is said during argument may not mean much later on. He expressed concerns that did not seem to be met with a very satisfying answer.

Yesterday on Charlie Sykes show, I suggested that Justice Scalia might not be a certain vote against the mandate. This was because of his writing in a prior case involving medical marijuana (the government's best cases involve wheat and weed). I thought, however, that Scalia would ultimately be unwilling to endorse a view of federal authority as expansive as an affirmation of the Affordable Care Act would require. Based on yesterday's argument, the likelihood is that my concern was unwarranted and my ultimate conclusion correct. He does not seem to buy it at all.

What is clear is that, contrary to the view of most legal academics over the past generation, the Affordable Care Act will not be upheld unless the Justices casting the deciding vote are persuaded of a substantial limiting principle. It is not clear that principle was articulated yesterday.
Some commentators have suggested that, if Justice Kennedy votes to uphold the Act, Chief Justice Roberts may join the majority to have greater influence on whatever the limiting principle turns out to be and to avoid a 5-4 decision. That could be. Others have suggested that the Chief won't want ObamaCare to be struck down by a single vote. But, if it is to be struck down, it's hard to see how it won't be by one vote.

There was much less discussion on whether the mandate can be upheld as a tax. I may post on that later. It just doesn't seem like a majority believes it.