(Page 4 of 4)
But when oral arguments began, Roberts wasted no time tearing apart Verrilli’s case, which rested on the idea that because we all will require health care at some point, the government may stipulate how we pay for it in order to prevent the uninsured from imposing a burden on others. “Once we say that there is a market and Congress can require people to participate in it, as some would say, or as you would say,” Roberts told the solicitor general, “it seems to me that we can’t say there are limitations on what Congress can do under its commerce power.” In fact, Roberts continued, “given the significant deference that we accord to Congress in this area, all bets are off.”
Justice Antonin Scalia soon amplified Roberts’ misgivings. “Why do you define the market that broadly?” he asked the solicitor general. “Everybody has to buy food sooner or later,” Scalia continued, “so you define the market as food. Therefore everybody is in the market; therefore you can make people buy broccoli.”
So much for a limiting principle. Nor did liberal Justice Stephen Breyer do the government’s case any favors when he chimed in to say that “yes, of course” Congress can “create commerce where previously none existed,” which could include forcing all Americans “to buy cellphones” to facilitate the provision of emergency services (a hypothetical posed by Roberts). Verrilli hastened to clarify that the government was not in fact endorsing a cellphone mandate, but the damage had been done.
To make matters worse, after Verrilli suggested that a ruling against the individual mandate would be tantamount to judicial activism, Roberts shot forward in his chair to accuse the government of demanding that the Court engage in activism by deciding that a health insurance mandate is acceptable but that a broccoli or cellphone mandate is not. “It would be going back to Lochner if we were put in the position of saying, no, you can use your commerce power to regulate insurance, but you can’t use your commerce power to regulate this market in other ways,” Roberts declared. “I think that would be a very significant intrusion by the Court into Congress’ power.”
Lochner v. New York was a 1905 case in which the Supreme Court struck down a state limit on bakers’ hours, saying it violated the liberty of contract protected by the 14th Amendment. Today Lochner serves as a sort of bogeyman to most liberal legal thinkers, who see it as a notorious example of conservative judicial activism. But many conservative legal thinkers also dislike Lochner, including Roberts. During his Senate confirmation hearings, the future chief justice said, “You go to a case like the Lochner case, you can read that opinion today, and it’s quite clear that they’re not interpreting the law; they’re making the law.” So when Roberts told Verrilli that the government’s theory of the Commerce Clause risks unleashing Lochner-style activism, he was raising a powerful conservative objection, one that would allow him to strike down the individual mandate while wearing the mantle of judicial restraint.
‘A Heavy Burden of Justification’
“People say I’m a libertarian,” Justice Anthony Kennedy told The New York Times in 2005. “I don’t really know what that means.” Most libertarians would tend to agree with him. In 2004, when the libertarian lawyer Randy Barnett stood before the Supreme Court to explain why his client, a cancer patient named Angel Raich, was not engaged in interstate commerce because her medical marijuana had been cultivated and consumed entirely within California, Kennedy did not buy it. Several months later, he joined Justice John Paul Stevens’ majority opinion upholding the federal ban on marijuana as a valid exercise of congressional power under the Commerce Clause.
But Kennedy seemed to have a different take on the reach of federal power when Solicitor General Verrilli made his case for the individual mandate. He not only suggested that Verrilli had “a heavy burden of justification” but also described a mandated purchase as so “different from what we have in previous cases” that it “changes the relationship of the federal government to the individual in a very fundamental way.”
At another point, however, Kennedy seemed inclined to accept the government’s argument that all of us will at some point receive health care, so it is reasonable to regulate the manner in which we pay for it. In an exchange that occurred toward the end of the day’s oral arguments, he referred to an uninsured young person as “uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” Then again, Kennedy prefaced that statement with yet another reference to the government’s failure to articulate a limiting principle. “The government tells us that’s because the insurance market is unique,” he said. “And in the next case, it’ll say the next market is unique.”
Will Kennedy’s willingness to accept the government’s description of the health care market outweigh his discomfort with the government’s potentially unlimited assertion of congressional power? The future of ObamaCare may depend on the answer to that question. We won’t know for sure until the decision comes out (likely in late June, at the end of the Court’s current term), but it may be significant that Kennedy interrogated Verrilli far more aggressively than he did the law’s challengers.
When this article went to press, the Supreme Court had not yet issued its health care ruling, but the oral arguments suggested the decision, whichever way it goes, will be close. Which is a far cry from the cocksure predictions of victory made by the PPACA’s defenders during the last two years. “I am quite sure that the health care mandate is constitutional,” Harvard University law professor Charles Fried, a solicitor general in the Reagan administration, testified before the Senate Judiciary Committee in February 2011. “I would have said [it’s] a no-brainer,” he added with a condescending smirk, “but I mustn’t, with such intelligent brains going the other way.”
Other PPACA supporters did not bother to mask their contempt for the legal challenge. “Under existing case law this is a very easy case; this is obviously constitutional,” University of Virginia law professor Douglas Laycock told The New York Times in a front-page story that ran the very day the Supreme Court wrestled with the constitutional questions raised by the individual mandate. The law’s challengers, Laycock breezily asserted, were “going to lose 8 to 1.”
I caught up with Randy Barnett, an architect of the legal challenge that Laycock so casually dismissed, on the front steps outside the Supreme Court a few minutes after oral arguments on the mandate had concluded. He did not look like someone who had just suffered a defeat. “The people who confidently predicted this was an 8-1 or 7-2 case are wrong,” he declared. Although Barnett declined to offer any further predictions, he could not hide the satisfaction in his voice. “It’s a very closely divided Court,” he said with a smile, “and we’re going to have to wait and see how it goes.”
Damon W. Root is a senior editor at reason.