Supreme Court

Kennedy and Roberts Raise Powerful Objections to the Individual Mandate

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Washington, D.C.—I walked into the U.S. Supreme Court early Tuesday morning expecting a knock-down, drag-out constitutional showdown over the Patient Protection and Affordable Care Act's individual mandate, which requires all Americans to buy or secure health insurance. I did not leave disappointed.

The day's biggest loser was Solicitor General Donald Verrilli, whose key responsibility was to convince a majority of the justices that while the federal government's power under the Commerce Clause is vast, it is not unlimited. Unfortunately for the Obama administration, Verrilli struggled and stumbled in his attempt to persuade the two justices whose votes matter the most to the government's case: Justice Anthony Kennedy and Chief Justice John Roberts, either of who might conceivably cast a fifth and deciding vote in the government's favor.

"I understand that we must presume laws are constitutional," Kennedy told Verrilli, "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?"

Kennedy later repeated that point with even more force, telling Verrilli, "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 a very fundamental way."

This doesn't mean that Kennedy is a surefire vote against the mandate, of course. He still has plenty of time to ponder the arguments put forward in the government's legal briefs—as well as to entertain the private arguments made in chambers by his colleagues on the bench. But his comments today do absolutely reveal that Kennedy takes the constitutional challenge to the individual mandate very seriously. That's bad news for the White House, since Kennedy so often casts the fifth vote in a tight case.

Chief Justice John Roberts also drew blood from Verrilli, suggesting at one point, "once we say that there is a market and Congress can require people to participate in it…all bets are off." Roberts also raised an argument that might prove quite effective in a future decision striking down the individual mandate. First, here's how the relevant exchange with the solicitor general went down:

CHIEF JUSTICE ROBERTS: Is your argument limited to insurance or means of paying for health care?

GENERAL VERRILLI: Yes. It's limited to insurance.

CHIEF JUSTICE ROBERTS: Well, now, why is that? Congress could—once you—once you establish that you have a market for health care, I would suppose Congress's power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be—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. I think that would be a very significant intrusion by the Court into Congress's power.

Note Roberts' reference to Lochner. Lochner v. New York is the much-maligned 1905 case where the Supreme Court struck down New York's limit on the number of hours that bakeshop employees could work because that regulation violated the liberty of contract protected by the 14th Amendment. Lochner today stands as an example of conservative judicial activism in the eyes of most liberal legal thinkers.

And many conservative legal thinkers also dislike Lochner, including Roberts himself. During his 2005 Senate confirmation hearings, the soon-to-be 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." Roberts was also worrying about judicial activism, about the dangers that he sees associated with the federal courts wading into the political thicket and selectively picking and choosing what sorts of laws to uphold or nullify.

So when Roberts told the solicitor general today that the government's theory threatens to unleash a new batch of Lochner-style activism by the federal courts (who will have to selectively decide if "you can't use your commerce power to regulate the market in other ways"), that's a very powerful objection. If he ultimately ends up using it, it would allow Roberts to strike down the individual mandate in the name of judicial restraint.

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  1. I’m cautiously optimistic.

    1. Even if the mandate is struck down, it wouldn’t surprise me if the majority of the law stands.

      Call me a pessimist. I’m used to it.

      1. Without acting in behalf of congress, how could the court ignore the non-severability clause?

        1. Does that exist? I haven’t been paying attention too much recently, and–despite being far better than the average Congress critter–I’m by no means a Constitutional or legal expert.

          1. ‘Mea culpa; it is not a non-severability clause, it is a lack of a severability clause:
            “Law Professor Jonathan Turley marvels at the mistake made by the socialists when they failed to include a severability clause in Obamacare – even as he wondered if it might have been part of a game of chicken.”
            …..
            “TURLEY: Well, first of all, it was a colossal mistake not to have a severability clause in this legislation. It’s a standard clause in bills.”
            http://www.wrko.com/blog/todd/…..alist-plot
            (forgive the hyperbole; first reference found on Google and it’ll serve)

            1. Thanks. Personally, I’d interpret literally and say that the absence of a severability clause means the whole thing must go.

              But I’m not a Supreme Court Justice.

              1. One wonderfully ironic aspect of that would be that Pelosi’s “We have to pass it to find out what’s in it” remark would really come back to bite her in the ass.

                1. Oh, and off-topic but interesting: Recent postings that included personal identifying information about Our Notorious Troll Who Perhaps Should Not Be Named have disappeared from several recent threads….

                  1. Update: Only some of them. Many are still there. Odd.

                    1. Somebody’s trying to invaded your private elite space? For Shame

          2. No severability clause was included in the HCRA. From an economic stand point, it would be disastrous if the court ignored this fact. The whole rationale of the mandate is that by forcing participation, the insurance market will avoid the death spiral effect that insurance markets are vulnerable to (essentially, low risk users choose to forgo insurance, leading insurance companies to raise premiums since they know they have mid to high range risk customers, which leads the mid-range people to forgo it and so).

            The HCRA included a ton of mandates on insurance companies for what they had to cover. If people are allowed to choose not to pay for coverage of things they won’t use, the death spiral accelerates because of these new requirements.

            1. “From an economic stand point, it would be disastrous if the court ignored this fact.”

              So my question remains: Can the court ‘presume’ congress intended the clause without standing in congress’s stead?

              1. Practically, severability shouldn’t matter, as laws are generally written anyway with parts that only make sense with other parts. So if part of the law suddenly becomes more ridiculous because another part can not be enacted, legislators will either have to modify the legislation or let the mess they created continue to wreak havoc. It is not something the supreme court needs to be concerned with.

                1. It should suggest to the court that there is a deliberate purpose to not including a severability clause.

                2. Since the remaining parts are exceedingly popular, I wouldn’t bet it would be repealed barring severability, even given the basically guaranteed resulting economic disaster (Read: Public Choice lives!!!)

                  1. If the Republicans in congress were smart, they would immediately try to pass a stand-alone bill to take effect should Obamacare be struck down that does nothing but require that insurance companies allow children up to age 26 to remain on their parents’ insurance.

                    That’s the most popular provision and disrupts the normal insurance market the least, since most 18-26 year olds are healthy.

                    Let the senate or the president kill such a bill, to their political detriment.

                    Too bad the Republicans aren’t that smart.

                3. well, in this case I don’t agree. There are thousands of regulations that have and will be written, agencies set up, exchanges to be established…it goes on and on.

  2. But we should totally vote for Romney because of SCOTUS nominations! Right?

    Rehnquist was superior to Roberts by far.

    1. You want more Kagans and Sotomayors? And why the hell is Kagan not recused?

      1. for diversity reasons. Without her, the court is 5 men and 2 women. With her its 5 men, 2 women and Kagen.

        1. wait a second: how about Ginsberg? btw, I listened yesterday and she verged on incoherence.

  3. When I saw the headline, I thought it was by that hipster lady they keep having contribute.

  4. I’m totally pessimistic, but the difference between Verilli and Clement was like night and day. Verilli could cause God to fall asleep.

    1. I’m wondering if this doesn’t go down as the first gender-split decision, with all the men striking it down and the women supporting the govt.

      1. I’m wondering which brand of deodorant Pelosi uses; there’s likely to be a spike in the demand.

        1. Beano.

        2. I’m wondering which brand of deodorant Pelosi uses; there’s likely to be a spike in the demand.

          Formaldehyde.

      2. Very doubtful. Breyer was quite pedantic and longwinded in his arguments against Clement and Carvin.

        1. Breyer, yeah. Well I was mostly right.

  5. “Continue reading…[below the fold]” is the new threaded comments.

  6. Damon, do you know whether the Justices have read the entire text of the PPACA? If you don’t know, what’s your impression?

    1. Or Tim. Sorry.

    2. Something something for the children!

      1. I don’t understand.

        No disrespect intended, but this is a serious question. I suspect very few congresscreatures have read it.

        1. Are you serious?

        2. Once agsin, are you serious?

  7. GENERAL VERRILLI: Yes. It’s limited to insurance.

    CHIEF JUSTICE ROBERTS: Well, now, why is that?

    And isn’t that always the basic question about coercive power? Why this far and yet no farther?

    The gamers, the trimmers, the power-worshipers and the go-along-to-ger-alongers seem never to worry about the obvious next step down the road to more buttinskyism.

  8. “once we say that there is a market and Congress can require people to participate in it…all bets are off.”

    I still don’t see this as a strong defense. If Congress has the power to regulate interstate commerce, they have the power to regulate the things that affect interstate commerce. Your failure to buy broccoli affects interstate commerce.

    Am example – the Corps of Engineers regulates the navigable waters of the US. Naturally they need to regulate the rivers that feed into the Mississippi and the creeks that feed into those rivers and the drainage channels that feed into those creeks and my shower that feeds into a septic tank that drains into a drainage channel.

    In order to regulate the Mississippi River, the government can compel me to take shorter showers. Remember – you heard it here first. Now go eat your broccoli.

    1. Uh, and what about the water you just piddled out? Is there some reason Congress doesn’t control the very moisture in your body?

      1. “Uh, and what about the water you just piddled out?”

        Got you covered with the low-flow toilet mandate.

        1. The difference is that they currently can’t make you piddle into the low flow toilet (contribute to teh flow of teh Mississippi River. But they want to.

      2. Tighten your still suit and stop worrying about it. We still have the spice.

      3. You haven’t been paying attention to what Bloomberg has been doing in New York. Wait ’til that goes national.

          1. Someone can correct me if I’m wrong, but my understanding is that the basic idea is that the Constitution is supposed to place limits on the extent of federal power. If it’s the case that the individual mandate gives Congress the power to compel just about anything, then the Constitution no longer place limits on the extent of federal power.

            I suppose it’s entirely possible to see no problem with this (I’d argue that both of the major parties are in this boat). However, it would change the nature of the interaction between individual and government dramatically.

  9. “I understand that we must presume laws are constitutional,” Kennedy told Verrilli

    I don’t.

    1. (wiping hands)

      My work here is done.

      1. wiping hands

        Hey! That’s my rice bowl!

    2. The Chief Justice must begin with a proposition: The regime is legitimate.

      If not………….

      Of course, the regime is illegitimate, but we are commenting here and not on the supreme court.

  10. “I understand that we must presume laws are constitutional”

    And why the fucking shit must we do that, Chief?

    1. Yeah, seriously, that struck me as a little odd. He had to have said that for a reason. Anyone with more legal knowledge than me know what it is?

      1. It’s just SCOTUS doctrine, and has been for a long time. It was originally mentioned in the Federalist Papers. It’s the thing Randy Barnett is combating with the “presumption of liberty” concept he proffers.

    2. Well, perhaps because the assholes that write the laws have sworn to Almighty God that they will defend and support the Constitution.

      Yeah, impresses the shit out of me too.

  11. All of the “expert” talking heads now seem to be saying that today was a disaster for Obamacare and that the individual mandate probably going to be struck down. Why don’t I believe it?

    1. ‘Cause uh peoples like me, esse. ObamaCare constitutional and good ’cause HUUUUUUUUUUUURRRRRRRRRRRRRRRRRRRRRRRRRRRRR

      HERPA HERPA DEEEEEEEEEEEEEEEEEEEERP

  12. Are you thinking what we’re thinking?

    1. I sure am, but where are we going to get a bag of squirrel guts and how are we going to wrestle Sonya Sotomayor into a scuba suit?

      1. Congratulations! You have won all the internets for today! Better luck tomorrow to everybody else.

  13. From any other source this would be disturbing news, but Damon W. Root is not know for objective analysis. In other words, the doctrinaire fuck hears what he wants to hear. That why he writes for this pathetic right-wing rag.

    1. Speaking of doctrinaire fucks… has Soros mailed you your check, Max?

    2. Ron Paul racist nutwackjob arf arf arf arf arf arf arf fap fap fap fap deeeerrrrrrpppppp!!!!!!!

    3. $

    4. Even Mother Jones is having a nervous breakdown at the thought that the Court is leaning toward not granting the federal government unlimited power.

      1. Which proves Mother Jones-type people love being “ruled from Day One”.

  14. “I understand that we must presume laws are constitutional,” Kennedy told Verrilli,
    —–

    Why? At least one member of Congress has said openly that he has no idea if the laws passed are Constitutional.

  15. Salon hss the best braying. Very exciting stuff.

    Delink work/benefits
    Provide a single payer option
    link free care to charities

    Canadian system needs a push from markets, allow extra cash to get into the system. There is a shortage of family doctors. Shortage! lol [+ the cartels keeping brown immigrant doctors from practising]

    Most folks are good people, empathy will still exist without government guidance or force.

    1. “There is a shortage of family doctors.”
      A year or more ago, I listened to a talk about Obamacare from a VP (of something) employed by a major ‘health-care provider’. He claimed to have read the entire damn thing, and it was obvious he wasn’t pleased to have done so.
      His report on the effects were:
      1) There will be no ‘family practitioners’ any longer; the paper work won’t allow less than several hundred doctors operating under a clerical umbrella.
      2) The rest is pretty much ‘unintended consequences’; nobody has a handle on it.

  16. I have a feeling Kennedy and Roberts will convince themselves to vote to uphold, being the pussies they are.

    Scalia and Thomas have plenty of faults, and I’m not convinced their influence has been positive, but you have to admit they have balls

  17. I’m having thought convulsions over all this goddamn blathering about the individual mandate. Yes, I’m glad it’s at least being discussed, but for fuck’s sake, sometimes I think it’s more depressing that so many people (so many JUSTICES) EVEN NEED CONVINCING as to whether the mandate is constitutional. I, for one, am growing a little tired of averting two or three snowballs per avalanche. This here rapuhblik is fuct.

    1. The only dastardly characteristic I see in the fabled “Koch monster” is the fact that they have enough money to trick libertarians into being hopeful.

    2. I am hopeful that if it is struck down, it will soon be seen as “obvious” by everyone, including liberals, that the federal government can’t just dictate purchases.

  18. So when Roberts told the solicitor general today that the government’s theory of the Commerce Clause risks unleashing a new batch of Lochner-style activism by the federal courts (who will have to selectively decide if “you can’t use your commerce power to regulate the market in other ways”), that’s a very powerful objection.

    Kennedy and Roberts both make this point, that if they uphold on this “uniqueness” argument, the court will be forced to constantly be picking and choosing which markets are sufficiently “unique” to allow the power. It would invite, and arguably force, the Court to start legislating, since it would constantly be called upon to make these decisions in every “unique” case.

  19. OK, the ‘wisdom of the crowd’ (AKA the market). As of today, “Obamacare in Trouble? Intrade Odds Jump from 38% to 60% That SCOTUS Will Reject Mandate ”
    http://mjperry.blogspot.com/20…..-odds.html
    That’s today, but I’d love to be a dinner guest sitting next to that hag Pelosi this evening and ask (*sweetly*) ‘Hey, Nancy, how about those great orals at the SCOTUS?’

    1. Thanks a pantload for putting Pelosi and oral in the same sentence.

      1. agree Elf, that’s a real boner-wilter!

  20. FUUUUUUCCCCCKKKKKK

    How is it that something with such profound ramifications for our political system has been reduced to a micro-legal analysis by a couple of lawyers in robes. The future of 320 million people and their descendents is at stake.

  21. I’ve gotta admit, I don’t understand anything that constitutional lawyers are talking about. My reading of the constitution is pretty straightforward: in plain English it says that the document grants certain limited powers to the government and that all other powers are reserved to the people or the states.

    Yet every time they start discussing the constitutionality of a law they begin and end with the policy implications of the law (and upholding or striking it). Over and over in this case the Justices and the lawyers talk about how important it is to have health care, how risky it is to allow expansion of power, etc.

    1. WTF are they talking about? The constitution grants the government the power to regulate commerce among the several states and with foreign entities. It does not grant the power to create a national healthcare system. It does not grant the power to mandate insurance coverage. Why are they discussing irrelevancies like whether it is an important policy. It might be the most important thing ever in the history of humanity, but the constitution doesn’t say:

      “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people…. unless it is really important.”

  22. If they overturn the mandate without tossing the requirement that ins. co.s cover preexisting conditions and the requirement to accept all applicants, then we’re on our way to single-payer healthcare within a decade.

    Unfortunately, I fear it’s too much to hope for that they overturn the entire bill.

    1. There is the possibility that they will sever the bill at the Mandate and the new insurance regs (community rating/guaranteed issue) while upholding the rest of the law.

  23. Who agrees with me that Kennedy is the hottest thing that has happened to Reason(.com)(.tv) in at least 20 years? If she and Alyona were in the same room, diamonds would melt.

    1. Kennedy is the hottest thing

      Teddy or George?

  24. If Congress has the power to regulate interstate commerce, they have the power to regulate the things that affect interstate commerce.

    This has never been the least bit rational to me. This claim was always a naked power grab.

    1. If Congress has the power to regulate interstate commerce, they have the power to regulate the things that affect interstate commerce.

      Unfortunately, that is pretty much what Wickard v. Filburn said.

      I don’t like it anymore than you do, but at this point the Constitution is just a goddamned piece of paper.

    2. It could possibly be justified since A1S8 says Congress has the authority to make other laws “necessary and proper” for executing the enumerated powers of A1S8. So a law regulating something that affects interstate commerce could be seen as “necessary and proper” for regulation of interstate commerce.

      I think that’s way too broad an interpretation, but it’s not totally indefensible.

  25. No way no how man, get your wolf on alreat!

    http://www.Anon-Works.tk

  26. But his comments today do absolutely reveal that Kennedy takes the constitutional challenge to the individual mandate very seriously.

    Better let Pelosi know.

  27. With all due respect all this tea leaf reading doesn’t mean a damned thing.

  28. Assuming they do shoot down the individual mandate as an excessive imposition of Federal power could this have implications beyond the Health Care law? If the Feds cannot compel you to buy health insurance should it have the authority to compel you to do other things? Register for Selective Service? Not smoke pot?

    On the flip side, as with speed limits, could the Feds pressure the various State Governments to force citizens to buy Health Insurance. I.E. withhold Federal support/$$/whatever until the States pass a law requiring the purchase of insurance?

    BTW wasn’t it Reason Magazine that had all those articles promoting everyone purchase health insurance some little while back?

    1. The mandate would force a positive action. That’s the problem. Telling people they can’t smoke pot is a negative action – to say that Congress doesn’t have this power is to say they can’t make any laws. You are not forced to register for selective service.

      1. Of course you are forced to enroll in selective service! It is against the law to refuse, and it makes you ineligible for student loans and other benefits. At least know something about the law!

        1. Selective Service isn’t an exercise of commerce regulation, it’s an exercise of setting rules for calling forth the militia. It doesn’t depend on the Commerce Clause.

      2. The government forces positive actions all the time. You can’t hit your child [negative action] but you also have to feed them, clothe them, provide shelter, provide child support. How is saying, that if you have the means, you need to provide health insurance for you kids any different then saying you have to provide child care/supervision? How is it different then seat belt laws?

    2. The Commerce Clause is only one of 17 powers granted to the feds in A1S8. If something falls under a separate power then the question of regulating inactivity is irrelevant in that case.

      Selective Service in particular falls under the power to set rules for calling forth the militia (which is defined as able bodied men over 18).

  29. One thing that seems to escape most people is that the main conservative argument against the ACA health insurance mandate is a slippery slope fallacy. The argument over limits implies that if the Court validates the mandate it will be impossible to find any limits to federal power. This is just silly. The Court could easily write a narrow opinion leaving room for other limits to federal power.

    The limits question can easily be turned on its head: if the government lacks the power for the mandate, it may well have lacked the power to force people to buy into social security or medicare. Invalidating the mandate invites a slew of lawsuits challenging and social welfare policy based on the commerce or taxing powers.

    1. You say that like it is a bad thing that the court might look at overturning the federal power overreach that is it’s social welfare policies.

    2. The argument over limits implies that if the Court validates the mandate it will be impossible to find any limits to federal power. This is just silly. The Court could easily write a narrow opinion leaving room for other limits to federal power.

      If they uphold the mandate, then they are saying that under the commerce clause, the government can force people who are not engaged in interstate commerce to perform certain acts. Given that, how can they say there are any limits to federal power, short of just arbitrarily creating them?

  30. The limits question can easily be turned on its head: if the government lacks the power for the mandate, it may well have lacked the power to force people to buy into social security or medicare.

    Usually when someone says an argument can be turned on its head, they mean that using it can lead to obviously absurd conclusions. You seem to be using it to say that following this argument people might just notice that the government is also stomping on freedom in other areas. I’m not sure why that would be bad.

  31. I refuse to reinforce the status-quo this coming election. I will be supporting the genuine third-party candidate Rocky Anderson in this coming election – He’s definitely worth researching! I encourage everyone who is interested in resurrecting our Constitutional liberties to do the same through registering at americanselect.org.

  32. After Kelo v. New London, Connecticut, I have little reason to trust Justice Kennedy.

    In fact, I wonder how his comments during oral arguments of that case compare to his comments over the last few days? Was he putting up a smokescreen?

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