I have now listened to the entire presentation before the Supreme Court today and I have a few observations. First, while the Solicitor General was indeed nervous and less than nimble in his responses, he didn’t fall on his face as Jeffery Toobin would have you believe. Second, Justice Kennedy appears to need some convincing, but his tough questioning doesn’t clearly indicate how he will vote.
Kennedy’s stumbling block is that the insurance mandate compels people to do something. Namely, it requires them to engage in commerce. And it forces them to do this, potentially, against their will. He raised 10th Amendment concerns. Specifically, he mentioned that the 10th Amendment reserves certain powers to the people. In this same context, he raised an Article One question, arguing that the mandate is clearly a necessary provision of the bill, but that it isn’t necessarily a proper provision. If it isn’t proper, it’s because it violates the 10th amendment, not as it pertains to the states, but as it pertains to the people.
While this line of questioning certainly raises some concerns about Kennedy’s disposition, it should be noted that this is a phony distinction. Everyone agreed today that it would be permissible for the government to require anyone seeking emergency room care to purchase health insurance on the spot (at the point of sale). The question is only whether people can be compelled to buy insurance prior to the point of sale. When you think about this, Kennedy’s argument loses almost all of its power. His concern is about the implications of granting the federal government the power to compel the purchase of something, but he concedes that the government has that power. To say the least, it doesn’t make sense to wait until people are in a dire medical condition to force health insurance on them. I honestly think Kennedy is going to realize this. If he ultimately rules against this bill it will be because he is having trouble identifying a limiting principle that would allow the government to do this in the health insurance industry but not in other industries. And this is where the Solicitor General did not do a particularly good job.
It’s actually important that Kennedy conceded that the mandate is a necessary provision of the bill because that means he acknowledges that the mandate cannot be severed from the overall bill. The severability question will be debated before the Court tomorrow. If the mandate cannot be severed from the bill, it makes it a much bigger deal to strike it down. I think it makes it substantially less likely that Kennedy will strike the mandate.
Overall, the conservative Justices pursued a slippery slope argument. They conceded that the federal government could just set up a national health care service paid for with taxes. They conceded that people could be compelled to buy insurance. Their concern was focused less on the evil of the mandate than on its peculiar preemptive structure. They were searching for a way to isolate the forced purchase of insurance so that it would not lead to a precedent for other kinds of forced purchases.
Some observers came away thinking that Chief Justice Roberts was less skeptical of the mandate than Justice Kennedy. I’m not sure I agree with that. He asked less pointed questions about it, but I think people are making too much of Kennedy’s aggressive line of questioning and ignoring other comments he made along the way. For example, at one point (page 24) Justice Kennedy said that since Congress can just set up a single-payer system paid for with taxes maybe they should be given some latitude.
Don’t let Toobin freak you out. No one knows how this will shake out.