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Tuesday, March 27, 2012

Of Federalism, Lochner and Broccoli: A Recap of the Second Day in the Obamacare Arguments

Okay, gang, so I listened to it (you can, too, here) and…  yeah, this looks pretty good for those of us who don’t like the mandate.  First, any hope that Scalia would uphold the law seems like a pipe dream.  And Kennedy seemed to be very troubled by this statute.

So let me show you the parts I found interesting or significant, for what it is worth, in chronological order.

Early on Alito highlights a theme of the anti-mandate forces: that this is not just about insuring that when you go to the hospital that you already have set up a method of paying for the care, but instead this is about subsidizing the health insurance industry generally by forcing people who wouldn’t buy insurance to buy it.  So it’s not really about solving a free rider problem alone:

JUSTICE ALITO:... Respondents -- the economists have supported -- the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.

GENERAL VERRILLI: No, I think that -- I do think that's what the Respondents argue. It's just not right. I think it -- it really gets to a fundamental problem with their argument.

Please note the Solicitor General is frequently referred to as “General Verrilli,” which is admittedly strange—I mean you picture generals only in military contexts—but it’s how it has been done for a while.

And early on Kennedy was hammering them with big doubts.  Indeed right out of the gate, we get this exchange:

JUSTICE KENNEDY: Can you create commerce in order to regulate it?

GENERAL VERRILLI: That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis.

In this case, the -- what is being regulated is the method of financing health, the purchase of health care. That itself is economic activity with substantial effects on interstate commerce.

And then later on he gets to the really big issue:

JUSTICE KENNEDY: Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, 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?

GENERAL VERRILLI: So two things about that, Justice Kennedy. First, we think this is regulation of people's participation in the health care market, and all -- all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market, because this is a market in which -- in which you -- although most of the population is in the market most of the time -- 83 percent visit a physician every year; 96 percent over a five-year period -- so virtually everybody in society is in this market, and you've got to pay for the health care you get, the predominant way in which it's -- in which it's paid for is insurance, and -- and the Respondents agree that Congress could require that you have insurance in order to get health care or forbid health care from being provided -

That is a withering question, and I don’t think Verrilli had a very good answer.

And of course broccoli is brought into the discussion early by Scalia:

JUSTICE SCALIA: Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

Here’s what Kagan said as a nominee on the question.  I interpreted it as the time as her tacitly admitting that we could be forced to eat broccoli, and I think her conduct today verified that.

And here’s Verilli’s answer to the idea that they could apply it to food:

GENERAL VERRILLI: No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and -- and seek to obtain a product or service, you will get it even if you can't pay for it. It doesn't -

JUSTICE SCALIA: Is that a princip[led] basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principle basis?

I mean, it's -- it's a basis that explains why the government is doing this, but is it -- is it a basis which shows that this is not going beyond what -- what the -- the system of enumerated powers allows the government to do.

GENERAL VERRILLI: Yes, for two reasons. First, this -- the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce?

The way in which this statute satisfies the test is on the basis of the factors that I have identified.

I don’t think he ever got to number two, but that is human.

Ezra Klien tweeted “You can mark the point -- page 14 -- when the liberal justices decide Verrilli is screwing up and step in to make his argument for him.”  Well, this is the sort of thing they are talking about.  Breyer previews how he would have this case come out.  I would go as far to say that he has it half-written, at least in his head and these kinds of statement are a rough preview of what he will write:

JUSTICE BREYER: All right. So if that is your difference -- if that is your difference, I'm somewhat uncertain about your answers to -- for example, Justice Kennedy asked, can you, under the Commerce Clause, Congress create commerce where previously none existed.

Well, yeah, I thought the answer to that was, since McCulloch versus Maryland, when the Court said Congress could create the Bank of the United States which did not previously exist, which job was to create commerce that did not previously exist, since that time the answer has been, yes. I would have thought that your answer -- can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, CHIP Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn't the answer be, yes, of course, they could.

Well, that is all well and cute, but there is a world of difference between creating commerce by the government buying stuff, and creating it by forcing you to buy stuff.

Kennedy asks another big question:

JUSTICE KENNEDY: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

GENERAL VERRILLI: Yes. The -- the rationale purely under the Commerce Clause that we're advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We -- the -- it would not justify purchases of insurance for the purposes -- in situations in which insurance doesn't serve as the method of payment for service -

JUSTICE KENNEDY: But why not? If Congress -- if Congress says that the interstate commerce is affected, isn't, according to your view, that the end of the analysis.

GENERAL VERRILLI: No. The, the -- we think that in a -- when -- the difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people's participation in the health care market, and is regulating to deal with existing effects of existing commerce.

What Kennedy is saying is that once you give congress the power, they are giving it for any use they find—and thus in any area typically considered commerce, they can force you to buy stuff.  That is how it typically works.

Sotomayor, meanwhile seemed confused about what the government was even arguing:

JUSTICE SOTOMAYOR: General, I see or have seen three strands of arguments in your briefs, and one of them is echoed today. The first strand that I have seen is that Congress can pass any necessary laws to effect those powers within its rights, i.e., because it made a decision that to effect, to effect mandatory issuance of insurance, that it could also obligate the mandatory purchase of it.

The second strand I see is self-insurance affects the market, and so the government can regulate those who self-insure.

And the third argument -- and I see all of them as different -- is that what the government is doing, and I think it's the argument you're making today -- that what the -- what the government is saying is if you pay for -- if you use health services, you have to pay with insurance. Because only insurance will guarantee that whatever need for health care that you have will be covered. Because virtually no one, perhaps with the exception of 1 percent of the population, can afford the massive cost if the unexpected happens.

This third argument seems to be saying what we are regulating is health care, and when you go for health services, you have to pay for insurance, and since insurance won't issue at the moment that you consume the product, we can reasonably, necessarily tell you to buy it ahead of time, because you can't buy it at the moment that you need it.

Is that -- which of these three is your argument? Are all of them your argument? I'm just not sure what the –

GENERAL VERRILLI: So, let me try to state it this way. The Congress enacted reforms of the insurance market, the guaranteed-issue and community-rating reforms. It did so to deal with a very serious problem that results in 40 million people not being able to get insurance and therefore not access to the health care environment. Everybody agrees in this case that those are within Congress's Article I powers.

The minimum coverage provision is necessary to carry those provisions into -- into execution;

Then the Solicitor General tries to confront the issue of the unprecedented nature of it:

GENERAL VERILLI:... But beyond that, in the sense that it's novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; or the Packers and Stockyards Act was unprecedented when the Court upheld it, or the National Labor Relations Act was unprecedented when the Court upheld it in Jones and Laughlin; or the -- the dairy price supports in Wrightwood Dairy and Rock Royal –

JUSTICE SCALIA: Oh, no, it's not. They all involved commerce. There was no doubt that was what regulated was commerce. And here you're regulating somebody who isn't covered.

It is really, really unprecedented.  And Scalia returns to the topic of what market is being regulated:

JUSTICE SCALIA: ...By the way, I don't agree with you that the relevant market here is health care. You're not regulating health care. You're regulating insurance. It's the insurance market that you're addressing and you're saying that some people who are not in it must be in it and that's -- that's difference from regulating in any manner commerce that already exists out there.

Scalia meanwhile articulates what is bothersome about this and painfully, Verrilli doesn’t get what he is saying:

JUSTICE SCALIA:.. The argument here is that this also is -- may be necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what, what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that -- this is a regulation –

JUSTICE SCALIA: No, that wasn't my point. That is not the only constitutional principle that exists.


JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that's a principle?

Let me break in here, for a moment.  What he is saying is this.  For states, all powers not denied are granted.  For the Federal Government, all powers not granted are denied.  And so this reading of the commerce clause would be so breathtakingly broad that it would do away with that principle.  The exchange continues:

GENERAL VERRILLI: Of course we do, Your Honor.

JUSTICE SCALIA: Okay. That's what we are talking about here.

GENERAL VERRILLI: And the way in which this Court in its cases has policed the boundary that -- of what's in the national sphere and what's in the local sphere is to ask whether Congress is regulating economic activity with a substantial effect on interstate commerce. And here I think it's really impossible, in view of our history, to say that Congress is invading the State sphere. This is a -- this is a market in which 50 percent of the people in this country get their health care through their employer. There is a massive Federal tax subsidy of $250 billion a year that makes that much more affordable. ERISA and HIPAA regulate that to ensure that the kinds of bans on pre-existing condition discrimination and pricing practices that occur in the individual market don't occur.

Now one thing that comes up several times is what I refer to as the Lochner “boogie man.”  That refers to Lochner v. NY, a 1905 Supreme Court decision.  In that case the court made up a right to contract that was not found anywhere in the Constitution, and used it to strike down economic regulation.  It has since fallen into such disrepute that it is an insult to say the courts are following Lochner.

And while the specific holding in Lochner is a dead letter, the courts have not been entirely shy about creating new rights.  The most recent example is the right to gay sex found in Lawrence v. Texas—in an opinion by Kennedy himself.  Which suggests it might be a tactical mistake to try to appeal to the fear of the Lochner boogie man.  But while the courts have never been shy about creating non-economic rights, such as the right to gay sex, there is a belief that if the Courts limit the ability of any government to regulate commerce that they will have ventured into dangerous constitutional territory.

So Lochner comes up several times.  So Chief Justice Roberts makes the argument why knocking down this law would not be a Lochner-like decision:

CHIEF JUSTICE ROBERTS: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits in the Federal power, as opposed to limits on the States, which was the issue in Lochner.

Kennedy returns to his disquietude about requiring an affirmative act:

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.

And 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 the very fundamental way.

These are not the words of a man who wants to uphold this.

Meanwhile Roberts points out that this isn’t really about covering services that you will inevitably partake from.  For instance, I think it is safe to say that I will never need a mammogram, and my wife will never need a prostate exam.  You are forcing people to pay for things they will never need:

CHIEF JUSTICE ROBERTS: I think you're posing the question I was posing, which is that [the idea we will inevitably use health services] doesn't apply to a lot of what you're requiring people to purchase: Pediatric services, maternity services. You cannot say that everybody is going to participate in the substance use market and yet you require people to purchase insurance coverage for that.

I thought this line stood out, too:

GENERAL VERRILLI:...Congress, after a long study and careful deliberation, and viewing the experiences of the States and the way they tried to handle this problem, adopted a package of reforms.

Oh yeah, it was a real careful analysis:

Roberts confronts the Lochner boogyman again:

CHIEF JUSTICE ROBERTS... 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 38 Alderson Reporting Company 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.

So I don't see how we can accept your -it's good for you in this case to say oh, it's just insurance. But 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, that people are already participating in it -- it seems to me that we can't say there are limitations on what Congress can do under its commerce power, just like in any other area, all -- given significant deference that we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way.

And Roberts makes the case that this is granting dominion over one’s health entirely.  Frankly this is the closest to my pet theory, that Obamacare is a violation of the right to privacy (language warning at the link).

CHIEF JUSTICE ROBERTS: -- unless I'm missing something, I think you're just repeating the idea that this is the regulation of the method of payment. And I understand that argument. And it may be -- it may be a good one. But what I'm concerned about is, once we accept the principle that everybody is in this market, I don't see why Congress's power is limited to regulating the method of payment and doesn't include as it does in any other area.

What other area have we said Congress can regulate this market but only with respect to prices, but only with respect to means of travel? No. Once you're -- once you're in the interstate commerce and can regulate it, pretty much all bets are off.

Also I think this line was borderline cruel by Scalia, when discussing whether it was a tax or a penalty.  As I wrote before:

One of the key questions in the case is whether the mandate is a tax or a penalty.  If it is a tax, it becomes much easier to defend the law from a constitutional perspective.  I mean, think about it.  Do you deduct interest on your mortgage when doing your taxes?  And of course one of the reasons why you would get a house with a mortgage, instead of just renting a house, is that you can’t deduct anything from a rental.  So in that situation, the government is encouraging you to enter into a specific kind of contract with a private party and raising your taxes if you refuse.  Which sounds a lot like the mandate, doesn’t it?  As much as I despise Obamacare, I can see the argument.

And if you read over that post you can see why Judge Vinson decided it was a penalty not a tax, and I think it is pretty strongly convincing—as have other circuits.  But on that subject, Scalia seemed to twist the knife in:

JUSTICE SCALIA: The President said it wasn't a tax, didn't he?

And Roberts in a more conventional way gets at it the same issue:

CHIEF JUSTICE ROBERTS: Why didn't Congress call it a tax, then?


CHIEF JUSTICE ROBERTS: You're telling me they thought of it as a tax, they defended it on the tax power. Why didn't they say it was a tax?

GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is -- in the Internal Revenue Code it is collected by the IRS on April 15th. I don't think this is a situation in which you can say -

CHIEF JUSTICE ROBERTS: Well, that's the reason. They thought it might be more effective if they called it a penalty.

Well, this site is called Allergic to Bull for a reason and yes, this is bull.  We all know why they didn’t want to call it a tax: because we knew then we would hate it even more.  But there is something to be said for the concept of estoppel, which is very often nothing more than a fancy term for not allowing parties to talk out of both sides of their mouths.  If they didn’t want to call it a tax, then it shouldn’t be treated as one.

By now we are talking to Clement, attorney for the various states.  He had conceded that if Congress passed a law that said that you could only pay for healthcare using insurance, that this would be constitutional, saying it is nonetheless unconstitutional to require you to get it ahead of time.  This lead to this exchange with Kagan:

JUSTICE KAGAN: Well, Mr. Clement, now it seems as though you're just talking about a matter of timing; that Congress can regulate the transaction, and the question is when does it make best sense to regulate that transaction?

And Congress surely has within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It's just a matter of timing.

MR. CLEMENT: Well, Justice Kagan, we don't think it's a matter of timing alone, and we think it has very substantive effects. Because if Congress tried to regulate at the point of sale, the one group that it wouldn't capture at all are the people who don't want to purchase health insurance and also have no plans of using health care services in the near term. And Congress very much wanted to capture those people. I mean, those people are essentially the golden geese that pay for the entire lowering of the premium.

Kennedy meanwhile tries to grasp the pro-Obamacare argument:

JUSTICE KENNEDY: Was the government's argument this -- and maybe I won't state it accurately -- it is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks?

That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?

MR. CLEMENT: Well, I don't know, Justice Kennedy, but, if it is, I think there is at least two problems with it.

One is, as Justice Alito's question suggested earlier, I mean, somebody who is not in the insurance market is sort of irrelevant as an actuarial risk. I mean, we could look at the people not in the insurance market, and what we'd find is that they're relatively young, relatively healthy, and they would have a certain pool of actuarial risks that would actually lead to lower premiums.

The people that would be captured by guaranteed rating and community issue -- guaranteed issue and community rating would presumably have a higher risk profile, and there would be higher premiums.

And one of the things, one of the things Congress sought to accomplish here, was to force individuals into the insurance market to subsidize those that are already in it to lower the rates. And that's just not my speculation, that's Finding I at 43A of the 56 Alderson Reporting Company government's brief that -- it has the statute. And that's one of the clear findings.

If you are pro-Obamacare, that is a glimmer of hope that Kennedy is thinking about it.  Or he is figuring out how to answer and dismiss that argument, which is my theory.

Meanwhile, Breyer gives us another preview of what is likely to be the pro-Obamacare opinion:

JUSTICE BREYER: Let me ask -- can I go back for a step, because I don't want to get into a discussion of whether this is a good bill or not. Some people think it's going to save a lot of money. Some people think it won't.

So I'm focusing just on the Commerce Clause; not on the Due Process Clause,...

Let me break in on that.  No one was talking the due process clause except for the court’s liberals in suggesting that striking down Obamacare would be like Lochner.  To resume Breyer’s comments:

...the Commerce Clause. And I look back into history, and I think if we look back into history we see sometimes Congress can create commerce out of nothing. That's the national bank, which was created out of nothing to create other commerce out of nothing.

I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.

And I look at the person who's growing marijuana in her house, or I look at the farmer who is growing the wheat for home consumption. This seems to have more substantial effects.

Is this commerce? Well, it seems to me more commerce than marijuana. I mean, is it, in fact, a regulation? Well, why not? If creating a bank is, why isn't this?

And then you say, ah, but one thing here out of all those things is different, and that is you're making somebody do something.

I say, hey, can't Congress make people drive faster than 45 -- 40 miles an hour on a road? Didn't they make that man growing his own wheat go into the market and buy other wheat for his -- for his cows? Didn't they make Mrs. -- if she married somebody who had marijuana in her basement, wouldn't she have to go and get rid of it? Affirmative action?

I mean, where does this distinction come from? It sounds like sometimes you can, and sometimes you can't.

So what is argued here is there is a large group of -- what about a person that we discover that there are -- a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can't the Federal Government say all 40 million get inoculation?

So here, we have a group of 40 million, and 57 percent of those people visit emergency care or other care, which we are paying for. And 22 percent of those pay more than $100,000 for that. And Congress says they are in the midst of this big thing. We just want to rationalize this system they are already in.

And the lawyer representing the states had a pretty good argument on Breyer’s ridiculous argument that being able to found the National Bank was a precedent for Obamacare:

MR. CLEMENT: No, the bank was not justified and the corporation was not justified as an exercise of commerce power. So that is not a case that says that it's okay to conjure up the bank as an exercise of the commerce power.

What, of course, the Court didn't say, and I think the Court would have had a very different reaction to, is, you know, we are not just going to have the bank, because that wouldn't be necessary and proper, we are going to force the citizenry to put all of their money in the bank, because, if we do that, then we know the Bank of the United States will be secure.

I think the framers would have identified the difference between those two scenarios, and I don't think that the great Chief Justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.

Now, if you look through all the cases you mentioned, I do not think you will find a case like this. And I think it's telling that you won't. I mean, the regulation of the wheat market in Wickard against Filburn, all this effort to address the supply side and what producers could do, what Congress was trying to do was support the price of wheat. It would have been much more efficient to just make everybody in America buy 10 loaves of bread. That would have had a much more direct effect on the price of wheat in the prevailing market.

But we didn't do that. We didn't say when we had problems in the automobile industry that we are not just going to give you incentives, not just cash for clunkers, we are going to actually have ever everybody over 100,000 has to buy a new car[.]

Also at one point Roberts asked a question seemingly from the pro-Obamacare side.  This is why, I suppose, some commenters think that Roberts was waivering.  But bluntly, I think if you listen to the moments before, he just felt a need to facilitate, almost as a courtesy for his liberal brethren. But I report, you decide:

CHIEF JUSTICE ROBERTS: Well, Mr. Clement, 63 Alderson Reporting Company the key to the government's argument to the contrary is that everybody is in this market. It's all right to regulate Wickard -- again, in Wickard against Filburn, because that's a particular market in which the farmer had been participating.

Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it.

MR. CLEMENT: Well, with respect, Mr. Chief Justice, I suppose the first thing you have to say is what market are we talking about? Because the government -- this statute undeniably operates in the health insurance market. And the government can't say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.

And amazingly, Sotomayor brought up car insurance as an example:

JUSTICE SOTOMAYOR: But we don't in car insurance, meaning we tell people, buy car -- not we, the states do, although you're going to -- I'll ask you the question, do you think that if some states decided not to impose an insurance requirement, that the Federal Government would be without power to legislate and require every individual to buy car insurance?

MR. CLEMENT: Well, Justice Sotomayor, let me say this, which is to say -- you're right in the first point to say that it's the states that do it, which makes it different right there.

And continuing that discussion of car insurance, she presses the theory that to refuse to extend Obamacare would be a Lochner-like decision:

JUSTICE SOTOMAYOR:... Is this a Lochner era argument that only the states can do this, even though it affects commerce? Cars indisputably affect commerce. So are you arguing that because the states have done it all along, the Federal Government is no longer permitted to legislate in this area?

MR. CLEMENT: No. I think you might make a different argument about cars than you would make about health insurance, unless you tried to say[.]

And after a few tries, Clement gets out the other half of the classic response—it’s the states, and it is still involving a voluntary transaction:

MR. CLEMENT: But, Justice Sotomayor, what I think is different is there is lots of people in Manhattan, for example, that don't have car insurance because they don't have cars. And so they have the option of withdrawing from that market. It's not a direct imposition from the government.

So even the car market is difference from this market, where there is no way to get outside of the regulatory web. And that's, I think, one of the real problems with this[.]

Clement hits on another of my arguments—how can you read the international commerce clause differently than the interstate commerce clause?

MR. CLEMENT:... The reason they didn't have any apprehension about it is because it's a power that only operated once people were already in commerce. You see that from the text of the clause. The first kind of commerce Congress gets to regulate is commerce with foreign nations. Did anybody think the fledgling Republic had the power to compel some other nation into commerce with us? Of course not. And in the same way, I think if the framers had understood the commerce power to include the power to compel people to engage in commerce

And we get another section from Breyer’s future opinion (by my guess) and how he deals... with broccoli:

JUSTICE BREYER:... You ask really for limiting principles so we don't get into a matter that I think has nothing to do with this case: broccoli, okay?

And the limiting principles, you've heard three. First, the Solicitor General came up with a couple joined, very narrow ones. You've seen in Lopez this Court say that we cannot, Congress cannot get into purely local affairs, particularly where they are noncommercial. And, of course, the greatest limiting principle of all, which not too many accept, so I'm not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law. That is a principle though enforced by the legislature.

The other two are principles, one written into Lopez and one you just heard. It seems to me all of those eliminate the broccoli possibility, and none of them eliminates the possibility that we are trying to take the 40 million people who do have the medical cost, who do affect interstate commerce and provide a system that you may like or not like.

That's where we are in limiting principles.

We must eliminate the possibility of being forced to eat broccoli, indeed.  What has our jurisprudence come to?

Now Clement did an admirable job parrying with Sotomayor when she argued that because the states could do a similar thing—auto insurance—but the Federal Government could not (Obamacare) that a proposed decision striking down the mandate would be a Lochner-like decision.  But she did get this admission out of him:

JUSTICE SOTOMAYOR: Would you tell me, do you think the States could pass this mandate.

MR. CLEMENT: I represent 26 States. I do think the States could pass this mandate, but I –

JUSTICE SOTOMAYOR: Is there any other area of commerce, business, where we have held that there is a concurrent power between the State and the Federal Government to protect the welfare of commerce?

MR. CLEMENT: Well, Justice Sotomayor, I have to resist your premise, because I didn't answer yes, the States can do it because it would be a valid regulation of intrastate commerce. I said yes, the States can do it because they have a police power, and that is the fundamental difference between the States on the one hand and the limited, enumerated Federal Government on the other.

Next comes Michael A. Carvin, who does a less impressive job in my opinion than Clement.  Toward the beginning you can see Roberts trying to get him to address the pro-Obamacare argument with mixed success:

CHIEF JUSTICE ROBERTS: Well, surely regulation includes the power to promote. Since the New Deal we've said that regulation in -- there is a market agricultural products; Congress has the power to subsidize, to limit production, all sorts of things.

MR. CARVIN: Absolutely, Chief Justice, and that's the distinction I'm trying to draw. When they are acting within their enumerated power then obviously they are promoting commerce, but the Solicitor General wants to turn it into a different power. He wants to say we have the power to promote commerce, to regulate anything to promote commerce, and if they have the power to promote commerce then they have the power to regulate everything, right? Because –

CHIEF JUSTICE ROBERTS: I don't -- I don't think you're addressing their main point, which is that they are not creating commerce in -- in health care. It's already there, and we are all going to need some kind of health care; most of us will at some point.

But he does a good job pointing out that if Obamacare is upheld, that other recent cases would be called into doubt.  For instance, in U.S. v. Morrison the Supreme Court struck down major parts of the Violence Against Women Act providing persons for a civil remedy when they were the victims of violence because of their gender, in part because it exceeded Congress’s authority under the commerce clause.  The United States claimed that it had the power to reach gender-motivated violence.  The court had little doubt that it affected interstate commerce, but it was still not commercial activity and that was determinative.  So Carvin hit on that in countering Breyer’s strange example of the government forcing us to take vaccinations for a fictional “super plague:”

MR. CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the --and it has huge effects on the health care of our country. Congress found that it increased health care costs by –

JUSTICE BREYER: I agree with you that –

MR. CARVIN: Well, but -

JUSTICE BREYER: -- that it had huge negative effects but the majority thought that was a local matter.

And I thought this particular line was striking:

JUSTICE KENNEDY: And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is 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.

That's my concern in the case.

After all that, Solicitor General Verrilli gets back up and I think he takes a swipe at Mitt Romney:

GENERAL VERRILLI: Thank you, Mr. Chief Justice.

Congress confronted a grave problem when it enacted the Affordable Care Act. The 40 million Americans who can't get health insurance and suffered often very terrible consequences. Now, we agree, I think -- everyone arguing this case agrees that Congress could remedy that problem by imposing the insurance requirement at the point of sale.

That won't work. The reason it won't work is because people will still show up at the hospital or at their physician's office seeking care without insurance, causing the cost shifting problem. And 107 Alderson Reporting Company Mr. Clement's suggestion that they can be signed up for a high risk pool at that point is utterly unrealistic.

Think about how much it would cost to get the insurance when you are at the hospital or at the doctor. It would be -- it would be unfathomably high, that will never work. Congress understood that. It chose a means that will work. The means that it saw work in the States and in the State of Massachusetts and that, and that it had every reason to think would work on a national basis.

Other than that, he didn’t say much of note.

So it’s an interesting discussion.  Thomas said nothing, but Thomas always says nothing.  He doesn’t see any point in the whole exercise.  Scalia showed no sign of doing anything surprising, and neither did any of the four  liberals.  So that left Kennedy and Roberts.  Some have interpreted some of what Roberts said as being sympathetic to the other side, but I just don’t get that vibe.  I think to the extent he helped them ask their questions it was more of a courtesy.  And Kennedy seemed to believe that unless some limiting principle could be found that this would fundamentally change the relationship between the people and their government—and I don’t think he found his limiting principle.

This was a good day for those who oppose Obamacare.  In my opinion.


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  1. "the predominant way in which it's -- in which it's paid for is insurance, and -- "

    ah ah ah, I see what he did there.

    I think Roberts will write the opinion. He was testing his opinion when asking questions gauging responses and testing intellectual challenges to it. Just a hunch.

  2. that's possible, but tactics suggest otherwise.

    one method of securing a swing vote? make him write the opinion. as he writes it, his position hardens.

    Indeed if you want to persuade someone to do something they are inclined not to do, delay having them declare their position as long as possible. Earl Warren did that in Brown. When they went into chambers, they didn't indicate their votes at first as was usual. instead they talked it out.

    Say what you will of Warren's jurisprudence, but he was one of the best handlers of justices ever.

    All of that isn't to say you are wrong. some of his behavior DOES line up with that theory. and let's face it, Roberts might by ego want to write it. This is the roberts court and this is his chance to make a mark. i could see that.

    But if roberts wants to win more than be in the limelight, he will ask kennedy to write it.

    Of course that reminds me of a line on King of the Hill. Hank objected to having a female preacher, saying she would ruin the church. And Peggy asked, "did a woman ruin the Supreme Court?"

    "Yes, she did, and her name was Earl Warren!"

    Which is deeply wrong on several levels, but pretty funny.

  3. We shall see.

    That's an interesting point, though. Unfortunately, if they announce Kennedy is writing the opinion we won't really know which side he's on.

    He could be coming up with another damn balancing test for when an issue justifies the commerce creation power implicit to the concept of ordered commerce. Jeez.

  4. Alito's first comment above that you quote is interesting. It seems the govt has identified the 'problem' as some folks using services, not paying, and as a result shifting those costs to to folks wih insurance or who do pay. Their solution of the mandate results in the very same inequity. Young people are going to be forced to buy insurance more expensive than the services they would need. There is still subsidization going on. I'd like to see the SG asked why the resultant subsidization is preferable to the existing subsidization.