Kennedy and Roberts Raise Powerful Objections to the Individual Mandate

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.