Why The Supreme Court Is Likely To Uphold ObamaCare’s Individual Mandate
Despite yesterday's victory for opponents of the Affordable Care Act, the prospects in the Supreme Court are not good.
As Steven Taylor noted in his post yesterday, Judge Henry Hudson’s ruling striking down the individual insurance mandate portion of the Affordable Care Act is far from the final word. For one thing, it is only one lawsuit among the two dozen or so that have been filed against the law. So far, two other Federal District Court Judges, one in Michigan and the other elsewhere in Virginia have come down on the exact opposite side as Judge Hudson. Regardless of their outcome, each of these cases will be appealed to the appropriate Federal Circuit Court of Appeals and, then, to the Supreme Court. In fact, given that the cases are roughly on similar calendars, it’s possibly that the Supreme Court will choose to hear argument in all the cases at once.
In any event it is the Supreme Court that will decide this issue eventually, and that should give those celebrating yesterday’s decision no small degree of pause:
How might the justices rule? Both sides can point to precedents that bolster and hurt their chances on two key questions.
The first is whether Congress has the authority to impose the individual mandate through its constitutional power to regulate commerce. The law’s opponents argue that the Constitution’s commerce clause applies only to economic activity and that the failure to buy insurance is a form of inactivity. They also contend that there is no legal precedent for empowering Congress to force Americans to buy a product on a private market.
The administration counters that because virtually everyone will need health care at some point in his or her life, a person’s decision not to buy insurance is actually a decision about how to pay for that eventual care. In other words, you can pay for your care now (through health insurance premiums), or you can pay for it later when you get sick, either out of your own pocket or with help from, say, the government or a hospital that covers the cost of care for the uninsured. Either way, you are making an economic decision that has an aggregate impact on commerce that Congress has the power to regulate.
Previous Supreme Court decisions lend some support to the administration’s line of reasoning. In a 1942 case, the court ruled that the government could force an Idaho farmer who was growing wheat for his personal use to destroy it because it exceeded production quotas that had been instituted to keep wheat prices from falling too low.
In 2005, the court determined – in an opinion that included Kennedy and four traditionally liberal justices – that the commerce cause empowered Congress to prohibit a person from growing marijuana for medical use in compliance with California state law because it affected the market for illegal marijuana that the federal government was seeking to shut down.
But Georgetown University law Professor Randy E. Barnett, who represented the losing side in the case, said: “Nobody commanded them to grow marijuana. So this case does not answer the question of whether Congress can mandate economic activity. There are simply no cases that address this, and therefore you can’t answer that question by looking at what the justices have said in the past because they’ve never been asked.”
Instead, he said, it makes sense to look to the reluctance of conservative justices to expand the government’s powers under the commerce clause in other recent cases, such as a 1995 one in which Congress had sought to regulate handguns in schools and a 2000 decision involving the Violence Against Women Act.
Meanwhile, even in the medical marijuana case, the only consistently conservative judge who concurred with the ruling – Antonin Scalia – did not agree that the commerce clause applied. Rather, Scalia argued that the deciding factor was Congress’s constitutional authority to enact laws “necessary and proper” to the execution of its enumerated powers.
This is a second major argument on which the administration is mounting its defense: Even without its commerce clause authority, government lawyers argue, Congress has a right to impose the individual mandate under this necessary and proper clause.
The constitutional arguments against the individual mandate have been laid out fairly well by Randy Barnett several times, most notably here and here, and while the arguments are persuasive one level the fact of the matter is that what really matters here is what is most likely to persuade a majority of the Supreme Court. Doing that requires having the law on your side, or a persuasive argument distinguishing precedent from the case before the court. Back in March, conservative attorney Stacy Cline noted at The American Spectator noted that the legal challenges to ObamaCare have the odds, and the case law, against them:
Despite this patent overreach by Congress, the Supreme Court’s flawed jurisprudence on this issue probably permits it. The government will argue that it has the authority to impose the individual mandate under the Commerce Clause of the Constitution, which permits Congress “to regulate Commerce … among the several States.” Supreme Court precedent has interpreted the Commerce Clause to permit Congress to regulate and prohibit all sorts of economic activities that in the aggregate substantially affect interstate commerce.
In the 1942 case Wickard v. Filburn, the Supreme Court authorized the broadest federal power to date, concluding that a farmer growing wheat for his own use was not exempt from federal caps on wheat production that had been established by the government to artificially drive up the price of wheat. The fact that the farmer was growing wheat for his own use meant he would not purchase it on the open market. The Court held that his failure to purchase wheat in the market, taken in the aggregate, would have a substantial effect on interstate commerce. Thus, the Court laid the groundwork for Congress to regulate nearly any activity with a weak connection to economic activity, and for years Congress did not even bother to establish the basis for its Commerce Clause authority.
The Supreme Court had the opportunity to overturn this precedent in Raich v. Gonzales, the 2005 medical marijuana case, but balked. In that case, the Court decided that it was within Congress’s Commerce Clause power to prohibit individuals from growing medicinal marijuana for their personal use. In reaching this conclusion, the Court affirmed that activity that does not fall under the Commerce Clause alone can be reached as part of a broader scheme to regulate interstate commerce. This case was blow to those of us who thought the opinions in Lopez and Morrison signaled that the Court was willing to scale federal power back to something closer to the Constitution’s original intent.
The individual mandate can be distinguished from these cases, as it compels economic activity where Wickard and Raich did not. But what Raich showed is that the Supreme Court does not have the will to limit federal power when Congress has made the most modest of showings that the activity has economic effects. The individual mandate is likely to be upheld as part of a legislative scheme that regulates economic activity, and the insult to our constitutional government, designed to limit the federal government to enumerated powers, will have received judicial sanction.
Moreover, as law professor Jack Balkin noted when this debate first started, it’s possible to uphold the mandate without ever reaching the Commerce Clause issues:
The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance.
The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.
The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior, like a tax on businesses that don’t install anti-pollution equipment.
Many important and popular government programs are based Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country).
Judge Hudson was rather dismissive of the General Welfare Clause argument in his ruling, but the other two Federal Judges that have ruled on the mandate accepted it completely, and the Supreme Court has historically been very deferential when it comes to assertions of power under the taxing power. For example, in Seward Machine Company v. Davis, the Supreme Court upheld the Constitutionality of the entire Social Security system based on Congressional power under the General Welfare Clause. It’s entirely possible that the opponents of the individual mandate could win on their Commerce Clause argument, but lose the case because the Court decides that the mandate is a proper exercise of the power to tax.
In the end, though, it isn’t just a matter of what the “right” argument is, but a matter of what argument would be most successful in persuading five members of the Court to rule in your favor. In that regard, despite the fact that the Roberts Court is often described as the most conservative Supreme Court in generations, there may not be as much sympathy for arguments against Federal power as some might think:
Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.
Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the “special solicitude” that the court’s majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general’s effort to prevent doctors in Oregon from cooperating with that state’s assisted-suicide law.
One example of the Roberts Court’s deference to Federal power grabs can be found in a case decided earlier this year where the Court held, over the dissent of only Justices Thomas and Scalia, that the Federal Government has the authority to detain certain sex offenders indefinitely even after they have served the full term of their sentence. Thomas’s dissent raised the argument that every other “conservative” justice rejected:
“As every schoolchild learns, our Constitution estab-lishes a system of dual sovereignty between the States and the Federal Government.” Gregory v. Ashcroft, 501 U. S. 452, 457 (1991). In our system, the Federal Government’s powers are enumerated, and hence limited. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) (“Thisgovernment is acknowledged by all to be one of enumer-ated powers”). Thus, Congress has no power to act unless the Constitution authorizes it to do so. United States v. Morrison, 529 U. S. 598, 607 (2000) (“Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution”). The States, in turn, are free to exercise all powers that the Constitution does notwithhold from them. Amdt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited byit to the States, are reserved to the States respectively, or to the people”).1 This constitutional structure establishes different default rules for Congress and the States: Con-gress’ powers are “few and defined,” while those thatbelong to the States “remain . . . numerous and indefinite.” The Federalist No. 45, p. 328 (B. Wright ed. 1961) (J. Madison).
The Constitution plainly sets forth the “few and defined”powers that Congress may exercise. Article I “vest[s]” inCongress “[a]ll legislative Powers herein granted,” §1, and carefully enumerates those powers in §8. The final clause of §8, the Necessary and Proper Clause, authorizes Con-gress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in theGovernment of the United States, or in any Department or Officer thereof.” Art. I, §8, cl. 18. As the Clause’s place-ment at the end of §8 indicates, the “foregoing Powers” are those granted to Congress in the preceding clauses of thatsection. The “other Powers” to which the Clause refers are those “vested” in Congress and the other branches byother specific provisions of the Constitution.
No enumerated power in Article I, §8, expressly dele-gates to Congress the power to enact a civil-commitmentregime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power.Accordingly, §4248 can be a valid exercise of congressionalauthority only if it is “necessary and proper for carrying into Execution” one or more of those federal powers actu-ally enumerated in the Constitution.
Section 4248 does not fall within any of those powers. The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpretedmost expansively, see, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937)—can justify federal civildetention of sex offenders. Under the Court’s precedents,Congress may not regulate noneconomic activity (such assexual violence) based solely on the effect such activitymay have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617-618; United States v. Lopez, 514 U. S. 549, 563-567 (1995).That limitation forecloses any claim that §4248 carries into execution Congress’ Commerce Clause power, and the Government has never argued otherwise, see Tr. of OralArg. 21-22.
Substitute health care reform for civil commitment in the language above, and you’ve pretty much written the (two person ?) dissent in the case(s) that are likely to comprise the Supreme Court’s ruling on the constitutionality of the individual mandate.
Back in March, Volokh Conspirator Orin Kerr gave odds on how likely a SCOTUS ruling against ObamaCare actually might be:
With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate.
Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.
But with all of these caveats, I’ll stand by my prediction.
I agree with Kerr in all respects. So far we’ve had three courts rule on the mandate, one of them has struck it down. As we go along through the appeals process, it strikes me as less and less likely that we’ll find judges who agree with Judge Henry Hudson.