Prior to Tuesday morning, journalists and experts spent quite a lot of time speculating about how Justice Scalia and Justice Roberts would vote on Obamacare. That was kind of like the media speculating about which 2008 presidential candidate would win Indiana and North Carolina. The results in those states were going to be close, and they mattered to the extent that they could dictate whether the election was considered a blowout. But the mere fact that the media was focused on Indiana and North Carolina meant that it was assuming that the states that were really going to swing the election—Ohio and Florida—were both already going to Obama.
In the same vein, there was much discussion about Scalia and Roberts before Tuesday morning because many experts were assuming that the vote that really mattered—Justice Kennedy’s—was pretty much in the bag for the supporters of Obamacare. But with nine words on Tuesday morning, Justice Kennedy changed everything. Less than five minutes into the arguments, Kennedy asked a simple question of the Obama Administration’s attorney: “Can you create commerce in order to regulate it?”
That question changed everything because it forced legal experts to shift the paradigm through which they were looking at the case. Prior to Tuesday morning, legal experts had essentially taken a first year law school approach to interpreting this case. In law school, students are taught to 1) identify the legal issue in a case, 2) look at previously decided cases to find a rule, 3) apply the rule to the facts in the current case. So, in the Obamacare case, the experts identified the legal issue as a Commerce Clause issue. They looked at the previously decided cases which I have written about, namely Wickard, Lopez, Morrison and Raich. From those cases they derived the rule in Commerce Clause cases: a court will first ask whether the federal government was regulating an interstate commercial market. If so, the court will ask whether the conduct involved in the case was rationally related to that commercial market. If both questions can be answered in the affirmative, the law is constitutional. Applying that rule, the experts reasoned that there is no question that the health care market is an interstate commercial market. There is also no question that an individual’s decision to purchase health insurance is rationally related to that market. Therefore, Obamacare must be constitutional.
So, here is what many of the experts missed: the Supreme Court only has to use the same rule it has articulated in previous cases if those previous cases involved the same issue as the present case. If, however, the Supreme Court concludes that the Obamacare case is not about the regulation of commerce, but something entirely different, such as the creation of commerce, the Court has more leeway to rule it unconstitutional. That is why Justice Kennedy’s question was such a bombshell. After almost no discussion on whether this case was about the regulation or creation of commerce, Kennedy asked a question premised on the assumption that the case is based on the creation of commerce. If one accepts that premise, it is somewhat difficult to see how the Obama Administration could win the case.
That is why most legal experts are now predicting that the Court will rule that the individual mandate is unconstitutional (expect a decision in June).
For the record, I did anticipate (in my post on the Raich case) that the Court might run in this direction with this case. But I would not be as bold as some other commentators have been in predicting the downfall of the individual mandate. Here are a few ways that it could still be saved:
- Justice Kennedy could still vote to uphold it. He has written before (in the Lopez case) and he reaffirmed on Tuesday (on page 104 of the transcript) that he believes that Commerce Clause cases are matters of degree. He is not as concerned about clear rules as other justices. He would probably agree that the federal government could have enacted more intrusive health care legislation or equally intrusive health care legislation in a slightly different way. So, based on that logic, this case might land somewhere short of too much intrusiveness on the Kennedy dial of Commerce Clause power.
- The Court could conclude that the Obama Administration’s argument fails under the Commerce Clause but succeeds under the taxing and spending power. Congress’s power to tax is very broad. The Court might just say that the individual mandate really just results in having to pay a tax. Congress cannot throw someone in jail for failing to buy insurance, but it can force that person to pay a tax, which is exactly what it did here (even though it used the word “penalty” instead of “tax”).
- Chief Justice Roberts could vote to uphold the law even while Justice Kennedy votes to strike it down. This is unlikely but conceivable. Roberts seemed to be willing to buy, at least for the sake of argument, the Obama Administration’s claim that all people are currently in the health care market whether they want to be or not. I will provide a deeper analysis of Chief Justice Roberts’ views in a subsequent post.
For now, the bottom line is that the oral arguments did not go well for supporters of Obamacare. It is not certain that the individual mandate will be overturned, but that possibility looks much more likely now than it did a week ago.