The Individual Mandate Oral Arguments

The oral arguments over ObamaCare are here:

Day 1 deals with whether or not the Tax Anti-Injunction Act bars legal challenges against the mandate until the “tax” goes into effect.

Day 2 deals with the constitutionality of the Individual Mandate.

Day 3 deals with the constitutionality of the Medicaid eligibility expansion, as well as the severability of the Individual Mandate.

By my evaluation, it looks like 6 out of 9 justices (including Sotomayor) are ready to strike down the mandate and at least 5 justices are ready to take down the whole Act with it. The Solicitor General simply could not articulate any sort of consistent limiting principle that could allow the mandate power to derive from the Commerce Clause without giving the federal government unlimited power. Additionally, the whole Act is such a massive monstrosity that passed by such narrow margins that the Justices did not feel comfortable trying to evaluate which portions of the Act would have passed without the mandate.

However, progressive pundits have been fighting back, saying that the limiting principle is there, and the Justices just weren’t listening. They say that the health care market is unique because “Health care is market that everybody will be a part of and must be administered in an emergency basis. NO other market has such a consideration.” This exact statement comes from a progressive on the forums who heard this argument from Sam Seder on a progressive radio show. I’ve heard similar statements coming from numerous other progressives.

The thing is, I have to question whether any of these progressives are actually reading the oral arguments before chiming in like this. Solicitor General Verrilli and Justice Ginsburg tried to make exactly this argument, and it didn’t hold up under scrutiny. First of all, how a service must be administered in order to be most effective or most financially sustainable (e.g. unexpectedly or paid for in advance) is a matter of whether or not a certain act is a good idea, not a matter of whether or not it’s legal. As Justice Kagan once pointed out, the questions of whether or not a law is stupid and whether or not it is legal are completely independent of one another. If the constitutional portions of the law are stupid unless something that cannot be constitutionally justified on its own merits is passed along with it, it doesn’t alleviate concerns of unconstitutionality. As one of the other Justices pointed out (I forget whether it was Roberts, Scalia, or Kennedy), there are plenty of constitutional ways Congress could completely break the economy, and that doesn’t justify unconstitutional action to alleviate those problems deliberately created by Congress. So if Congress doesn’t want to pass a stupid law, they simply should not try to pass a stupid law, not try to violate the constitution in order to make a stupid law a little less stupid.

So, on to the second “unique” factor. “Health care is market that everybody will be a part of.” The Justices brought up a couple of problems with this claim. As Kennedy described, government could define the market that it’s regulating as “the food market,” which everyone will unquestionably be a part of at some point. Would that allow Congress to mandate that everyone buy broccoli? What about the housing market? Can the government force everyone to buy apartments rather than houses? And the transportation market? can the government force everyone to buy a GM car? The information market? Can the government force everyone to buy the New York Times or the Wall Street Journal?

And what about Christian Science followers? Obtaining any kind of health services is against their religion, so that means that not everybody will be a part of the health care market. At best, you can only say that “most” people will be a part of the market. Justice Kennedy nailed Verrilli with this one, and then went on to ask what percentage of the population has to be engaged in a market in order for the government to decide that it can assume that everyone is participating in the market. Is 90% good enough? What about 70%? If we’re letting the government create mandates for everyone regarding markets that only “most people” participate in, then can it also create mandates about the electronics market? Can they force everyone to buy a Macbook? What about the movie market? The cell phone market? The energy market? Is there any market Congress can’t touch?

As Justice Kennedy pointed out, if nobody can find a limiting principle, then the Individual Mandate cannot possibly be considered constitutional.

Ezra’s Point About Vinson’s ObamaCare Ruling

In this article, Ezra Klein argue that the weak point in Judge Vinson’s ruling resides in his use of argument from first principles to suggest that power without logical limit cannot be a correct interpretation of the Necessary and Proper Clause.

Klein points out that Vinson’s argument contradicts the Supreme Court ruling in the case of Gonzales v. Raich, according to the dissenting opinion. In Gonzales v. Raich, Justice Stevens concluded that the power to ban marijuana growing locally existed because it is necessary and proper to help control interstate commerce. Justice Thomas disagreed, saying that granting this power allows the government to regulate “virtually everything.” Ezra is arguing that since this ruling stands, and since some Supreme Court justices think this ruling grants unlimited power to the government (albeit, different justices), then an argument against the Necessary and Proper Clause granting unlimited power to the government cannot stand until the Raich precedent is overturned.

First of all, Justice Stevens is a making a pretty weak argument here- the Necessary and Proper Clause specifically only allows powers necessary and proper for “bringing into execution” Congress’ other powers. His reasoning is that enforcement of bans on interstate trade becomes difficult when the product can be produced within the states. This alone is a stretch- the same logic would allow the government to massacre the entire populace, under the presumption that this would be the only way to get rid of all the murderers. This reductio ad absurdum is a logical problem the Supreme Court will have to deal with someday, so it wouldn’t be out of line for a District Court to question Stevens’ logic.

Even so, Justice Thomas is also incorrect, because the Raich line of reasoning doesn’t apply to the question of forcing people to get health insurance. People going without health insurance doesn’t make it harder for the government to enforce any of the other provisions within the PPAC Act. The Act does not legislate a requirement that all insurers must stay in business. Including such a requirement would violate the 13th Amendment. As stated numerous times by the defendants, the Individual Mandate provision is necessary to prevent prices from rising, and/or to prevent insurers from going out of business. Yet, neither of these effects aids in enforcement of other components of the law. So the Raich ruling, while being of questionable logic, doesn’t actually provide the precedent for truly unlimited regulatory powers as Justice Thomas feared. It may allow virtually any regulation to be put in place, but not for any reason. The reason must be a matter of enforcement of independently-granted constitutional powers, as opposed to an attempt to bring about a desired effect.

In fact, the entire defense of ObamaCare relies on ignoring this distinction between desired effects and enforcement capabilities. However, to do so has absolutely no precedent and no justification. Judge Vinson’s ruling is entirely consistent with the ruling in the Gonzales v. Raich case.