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ObamaCare At The Supreme Court, Day Two: The Mandate Under The Microscope

As I noted in my preview on Sunday, today was the day that the Supreme Court considered the issue that most everyone considers to be at the center of the debate over the Affordable Care act, the constitutionality of the individual mandate, the question of just how far Congressional power under the Commerce Clause extends, and the issue of whether the Supreme Court perhaps had gone too far in defer to the political branches when it comes to the limitations set forth in Article I, Section 8. Not surprisingly, then, there was another reound of protests outside the Supreme Court Building this morning as each side presented their arguments for or against the health care reform law as if they were running an election campaign. Inside the Court, however, it was all about the law and the general consensus seems to be that the Government came away from the morning with the distinct danger that the centerpiece of their landmark legislature was in danger of being declared unconstitutional:

The Supreme Court’s conservative justices appeared deeply skeptical that the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty, as the court completed two hours of debate Tuesday on the key component of the nation’s health-care overhaul law.

Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases allow” the Congress to wield in regulating interstate commerce.

“Can you create commerce in order to regulate it?” he asked.

The arguments revealed a familiar alignment of the court. Its four liberal justices, appointed by Democratic presidents Bill Clinton and Barack Obama, supported the government’s argument. But one of the five conservatives appointed by Republican presidents Ronald Reagan, George H.W. Bush and George W. Bush would be needed to uphold the act, and all at some point resisted the government’s position. Their sharp questioning raised doubts about whether the individual insurance mandate could survive the Supreme Court’s historic review.

Kennedy and Chief Justice John G. Roberts Jr. would seem to hold the key to the court’s eventual decision, which likely will come near the end of the court’s term in June. But a caveat is appropriate: while the justices’ questions often foreshadow their decisions, that is not always the case, especially in cases with high stakes and constitutional questions.

The question of the limits of government power has animated the nation’s debate over the health-care law since it was passed by a Democratic Congress in 2010. The law, President Obama’s signature domestic initiative, has been roundly denounced by Republican officeholders and the candidates vying to run against him in the November presidential election.

U.S. Solicitor General Donald B. Verrilli Jr., representing the government, was the first to argue Tuesday, and he immediately found himself assailed by skeptical questions from some of the court’s conservatives. The lawyers for the parties challenging the law were scheduled to present their arguments after Verrilli.

“So if I’m in any market at all, my failure to purchase subjects me to regulation?” Justice Antonin Scalia wanted to know. The court’s longest-serving justice had been seen by some of the law’s proponents as a potential ally because of a past decision in which he said the Constitution’s Commerce Clause, which allows Congress to regulate interstate commerce, gave it power in cases involving the national economy.

But Scalia gave no indication that he was convinced by the government’s argument. He asked whether, if the individual mandate were upheld, the Congress could then compel people to buy broccoli or cars.

Roberts, too, had given the Obama administration faint hope. He wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies. He worried that if the court said requiring health-insurance purchases were constitutional because the health-care market was such a unique one — Verrilli repeatedly made that case, because no one can predict what services they will need and when — the government would simply come up with reasons that a different industry fit the bill.

“All bets are off,” he said.

Justice Samuel A. Alito Jr. brought up burial services. Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral? he asked. He characterized the underlying logic as “artificial.”

The conservatives raised familiar arguments that have become commonplace during the two years of national debate on the law: the potential for requiring people to purchase all sorts of things, from broccoli to gym memberships, that can be considered good for them.

CNN Legal Analyst Jeffrey Toobin, who observed the argument and was on the air minutes after it ended, was more explicit in his assessment of the problems he foresees for the Obama Administration here:

CNN Legal Analyst Jeffrey Toobin, following Supreme Court arguments on President Obama’s health care law, said on CNN that based on what he heard inside the Court, things didn’t look good for proponents of the law.

“This was a train wreck for the Obama administration,” he said. “This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong… if I had to bet today I would bet that this court is going to strike down the individual mandate.”

Toobin added that he felt that U.S. Solicitor General David Verrilli simply wasn’t prepared for the conservative justices.

“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”

Of course, when you read stuff like this, you need to keep in mind what I said in my preview on Sunday both about the dangers of relying on oral argument as a perfect guide for how the Court might end up deciding the suit and the general inanity of the legal commentary that we’re likely to hear about this case between now and when the Supreme Court releases its decision in late June.It’s also worth noting that the Federal Government has been here before. When this issue was before the D.C. Circuit Court of Appeals last year, government lawyers were grilled endlessly by Judge Silberman and the two other members of the panel, conservative jurists all. In the end, though, Silberman wrote an opinion upholding the mandate.

From his questions, it does indeed sound as though Kennedy, along with the four conservative Justices, is highly skeptical about the mandate and he may in the end up being the fifth vote to declare the mandate unconstitutional. That’s not an unfair conclusion to reach, I submit, when one considers the signals coming from Justice Kennedy, especially when you consider a question like this one to Solicitor General Donald Verrilli:

1) Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Or this one to Michael Carvin, one of the attorneys arguing on behalf of the challengers:

The reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

Based on this it would seem that Justice Kennedy accepts one of the central arguments being made by the challengers, that there is something unique and different about the mandate that not only raises serious Constitutional concerns but also distinguishes it from the previous cases in which the Court has upheld Congress’s exercise of it’s power under the Commerce Clause. At the same time, though, it is rather evident from Lyle Denniston’s summary of today’s argument, Kennedy may still end up being the Justice who saves the mandate in the end:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature.


[I]n the end, if Kennedy were to wind up accepting the mandate’s validity — however reluctantly — those four could then be in the majority.  Such a majority, it appeared, would probably form only behind the theory that the mandate was within Congress’s power under the Commerce Clause, not under its taxing authority in the General Welfare Clause.  The tax argument seemed to lack force, and Verrilli used it primarily as just a backup.

If that coalition were to form, it would be likely that Justice Kennedy, the senior among those five, almost certainly would assign the opinion to himself — unless, of course, the Chief Justice ultimately were persuaded to go along so that this historic case did not turn out to be decided 5-4.   Roberts was among the more combative adversaries of the mandate, during Verrilli’s argument, but he made considerable efforts to remind the challengers’ lawyers of the government’s key points, perhaps to test how solid their answers to those points would be.

It would seem clear, though, that if Kennedy ends up joining any such coalition that says the mandate, it will only happen if there’s some kind of limiting principle that the Court can find that would answer the concerns that he, and Justices such as Scalia, Alito, and Roberts expressed during the course of today’s arguments. It’s the same question that people have been asking ever since the mandate became an issue, and a question I asked just a few weeks ago. If the government can mandate that everyone has to purchase health insurance, then what can’t it mandate? Where, exactly, does the line get drawn if the Court upholds the individual mandate and what might a future Congress do with this new found power? Based on a review of the transcript, the Solicitor General seemed to have difficulty coming up with an answer to that question, and that may end up being the mandate’s undoing. As James Joyner notes in his post this afternoon, it’s rather surprising that he didn’t have an answer ready on what is likely to be the deciding issue in the case.

Talking heads and legal analysts will be quick to make predictions about what today means for the ultimate outcome of the case. For the most part, they’re just going to be guessing. The first votes on all of the issues that the Court is hearing this week will take place at the Court’s private Friday Conference at which they will discuss the case, take voters, and assign opinions. That may not be the end of the process, though, because the process of writing the opinions that takes place over the next three month will also be an effort by the one or more Justices to convince their brethren, most specifically no doubt Justice Kennedy, to join their side of the argument. It’s entirely possible that the side that’s in the majority at the end of the day on Friday will find itself in the minority at the end of the process. Or, they may be no changes at all. We really won’t know the answer to that question until the last day of the Court’s term most likely.

There are a few things we can probably say today, though. Based on the transcript it would seem that any hope that the pro-mandate forces had of drafting Justice Scalia onto their side by raising arguments that relied heavily on his concurring in opinion in Gonzalez v. Raich would seem to be out the window. Scalia, Alito, Thomas and probably Roberts all seem firmly inclined to strike the mandate down. That leaves the case, as we suspected all along, in the hands of Justice Kennedy. If he ends up voting in favor of the mandate, he would end up being the most senior Justice of the group and could assign the opinion to himself. Depending on how he argues the issue, he might be able to persuade Chief Justice Roberts to join him to make it 6-3. However, if Kennedy joins the conservatives in voting to strike down the law it seems unlikely that he’d be able to bring any of the other four along with him. So, we’d end up with a 5-4 decision striking the mandate down. The final thing that’s clear is that the individual mandate is in far more danger than its advocates may have originally thought, and that its fate now hinges on the vote of one man. That’s a shaky precipice to rest upon.

Tomorrow is the final day of oral argument. In the morning, the Court considers what may indeed end up being the most important issue of the week. Assuming for the sake of argument that today’s argument was an indication that the mandate will be struck down, tomorrow morning’s argument considers the question of what then happens to the PPACA as a whole. One wonders if Justice’s Kennedy’s opinion on the mandate will, in the end, be influenced by the question of whether striking down the mandate means the Court must also strike down the entire PPACA.

Audio of today’s oral argument is available here. My post regarding Monday’s hearings can be found here. And, the transcript of today’s hearing is embedded below.

Photo via MSNBC

Florida et al v. HHS et al SCOTUS Transcript Day Two

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook


  1. Hey Norm says:

    Absent the mandate, the only way to protect me from free-riders…to protect my liberties…is to nullify the mandate to provide health care to everyone regardless of their ability to pay for it. So we are all agreed that’s what we should do?

    Like or Dislike: Thumb up 2 Thumb down 1

  2. Ben Wolf says:

    The conservative justices are asking legitimate questions. Although I support universal health care, I have reservations about a law requiring americans to become customers of a protected industry. Striking the mandate down may just open up the possibility of single-payer.

    Like or Dislike: Thumb up 9 Thumb down 1

  3. Tsar Nicholas II says:

    #1, you’re not nearly as threatened by those “free riders” as motorists are from those who refuse despite state laws to the contrary to purchase auto insurance. That’s why the industry created uninsured and underinsured motorist coverages, waivers of deductibles, etc. Similar concepts can be applied to the healthcare and health insurance sectors, without the rest of us having to get in touch with your inner Fidel Castro.

    #2, with Boehner in charge of the House and with McConnell poised to take charge of the Senate, even on a bad night for the GOP in November, the chances of a single-payer system getting enacted any time soon nearly are the same as the chances of a three-legged pony winning the Triple Crown. Time for another Ritalin shot, Cochise.

    Regarding Obamacare, it’ll be a 5-4 decision with Kennedy casting the deciding vote. It could be two 5-4 decisions, so to speak, with the mandate being struck down 5-4 and then severability also being determined 5-4.

    If the whole law is tossed out it’ll be good riddance to bad garbage. If it’s upheld in whole or in part it’ll prevent a lot of people from obtaining gainful employment, it’ll push a lot of people with gainful employment out of work, and it’ll take away a lot of non-healthcare government benefits from poor minorities. The law of unintended consequences. That should not be surprising to anyone, although the left for obvious reasons is and shall remain insouciant. Rent control ordinances lead to higher rents and gentrification. Gun control laws lead to higher rates of gun violence. Living wage ordinances lead to less employment and to higher relative poverty rates. The raison d’etre of being a leftist is never having to learn from nor to apologize for prior mistakes.

    Like or Dislike: Thumb up 1 Thumb down 3

  4. michael reynolds says:

    I predicted long ago it would be a party line vote. And yes, I do mean party. The court members that violated their own principles to steal the White House for Republicans will never vote to support a centerpiece of Mr. Obama’s administration. Legal argument my ass: it’s politics. It’s always politics.

    Like or Dislike: Thumb up 12 Thumb down 2

  5. @michael reynolds:

    Ah yes dragging out the nonsense about Bush v. Gore again. It’ll be a 1000 years from now and Democrats will still be selling a false narrative on that case.

    Like or Dislike: Thumb up 5 Thumb down 14

  6. Hey Norm says:

    “…limited to the present circumstances…”

    That’s all you need to know about Bush v. Gore.

    Like or Dislike: Thumb up 9 Thumb down 1

  7. Ron Beasley says:

    We seem to be ignoring the politics here and yes a lot of politics goes on in the SCOTUS and has for years. The problem is the politics are really complicated. The rejection of the ACA would be good for Obama in November. It denies the Republicans an issue for one but it also gives Obama an issue to fire up the base – the SCOTUS itself. The next president will appoint at least two and possibly more nominations which could change the face of the court. The conservative members know this,

    Like or Dislike: Thumb up 6 Thumb down 1

  8. An Interested Party says:

    Similar concepts can be applied to the healthcare and health insurance sectors, without the rest of us having to get in touch with your inner Fidel Castro.

    We could certainly get further along in these conversations if we didn’t have to deal with idiotic references like this one…

    …the chances of a single-payer system getting enacted any time soon nearly are the same as the chances of a three-legged pony winning the Triple Crown. Time for another Ritalin shot, Cochise.

    Yes, please gloat, as the longer that nothing is done about health care, the more likely a single-payer system will get enacted…

    Rent control ordinances lead to higher rents and gentrification. Gun control laws lead to higher rates of gun violence. Living wage ordinances lead to less employment and to higher relative poverty rates. The raison d’etre of being a leftist is never having to learn from nor to apologize for prior mistakes.

    Obviously the raison d’etre of being Tsar Nicholas is never having to prove or provide credible evidence to back up the ridiculous horse$hit that he passes off as analysis…

    It’ll be a 1000 years from now and Democrats will still be selling a false narrative on that case.

    Ahh, about the same amount of time that Republicans (and some libertarians, no doubt) will be selling the false narrative that the New Deal was a socialist scheme that was the beginning of the end of our country…

    Like or Dislike: Thumb up 5 Thumb down 1

  9. Hey Norm says:

    So…the Koch Brothers court strikes down the PPACA. Where does that leave us?
    A health care system that is amongst the costliest in the world, and delvers mediocre results.
    Millions without any insurance taking advantage of free and costly emergency care.
    People with pre-existing conditions will be back on their own.
    Young people…back on their own.
    And rapidly…unsustainably…increasing health-care costs.
    What’s the Republican answer to these problems?

    Like or Dislike: Thumb up 6 Thumb down 1

  10. michael reynolds says:

    @Doug Mataconis:
    And it will still be true.

    Like or Dislike: Thumb up 9 Thumb down 3

  11. An Interested Party says:

    So…the Koch Brothers court strikes down the PPACA. Where does that leave us?
    A health care system that is amongst the costliest in the world, and delvers mediocre results.
    Millions without any insurance taking advantage of free and costly emergency care.
    People with pre-existing conditions will be back on their own.
    Young people…back on their own.
    And rapidly…unsustainably…increasing health-care costs.

    The President’s election campaign in a nutshell if SCOTUS strikes down PPACA…

    Like or Dislike: Thumb up 2 Thumb down 1

  12. Franklin says:

    @Ben Wolf: I’m actually with you there, word for word.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. Steve V says:

    I’m amazed at the frenzy of tea-leaf reading surrounding these arguments. I was always told that you can’t tell anything about the judges’ leanings from an oral argument. When I was litigating, we often lost the appeals that we felt best about after oral argument and won the cases where the judges seemed to hate us. But with this, people are all over the internet calling the case over after each day of argument.

    Like or Dislike: Thumb up 4 Thumb down 0

  14. Rick DeMent says:

    Yeah because not buying broccoli has a huge impact on the cost of broccoli for everyone else … oh yeah and I’ll die without it …

    Like or Dislike: Thumb up 1 Thumb down 1

  15. Robert in SF says:

    Layman’s request:

    Is the mandate to purchase health insurance? Or that, if you don’t provide proof of insurance, then there is a tax/fee/fine from the federal government to offset the cost of assigning your “coverage” in absentia (?)…meaning, that everyone is required to pay this fine, except those who earn a tax credit by having made some economic decision?

    How is this any different in principle than a tax deduction for a child? You get a reduced tax bill based on your economic impacting decision to have a child? I don’t get that tax advantage for spending the money on a having a kid….why doesn’t this same parallel apply to health insurance?

    Or is the mandate/fine set-up not actually established that way?

    Like or Dislike: Thumb up 0 Thumb down 0

  16. David M says:

    Is there any doubt the law is in jeopardy simply because there are more Republicans on the Supreme Court than Democrats? The GOP want Obama to fail and do not care if people have health care, and this obviously extends to their hacks in the black robes.

    Like or Dislike: Thumb up 2 Thumb down 0