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.

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