Immediately after the oral arguments before the Supreme Court in the Obamacare case, defenders of the Affordable Care Act panicked because of some of the comments made by the swing vote on the Court, Justice Kennedy. That panic was not unjustified. As I have explained, Kennedy’s comments were unfavorable to Obamacare, and it is difficult to imagine the individual mandate surviving without Justice Kennedy’s vote.
But a close reading of the oral arguments suggests that there is a chance that Chief Justice Roberts could supply the crucial fifth vote necessary for upholding the individual mandate. Roberts’ comments suggest fairly strongly that, unlike some of his conservative colleagues, he is willing to accept the premise that everyone is involved in the health care market from birth to death, whether they purchase insurance or not. This premise is based on the contention that anyone can enter the market involuntarily at any time.
The key examples of Chief Justice Roberts seemingly expressing support for that premise come on pages 42, 64, 82, 83 and 93 of the transcript. To be sure, none of Roberts’ comments clearly indicate that he accepts the premise, but the fact that he kept dwelling on it certainly means that it was on his mind.
So, let’s assume for a moment that Roberts accepts the premise that everyone is in the health care market from birth to death. There are still issues that could prevent him from voting to uphold the individual mandate. Roberts was very bothered by the idea that under the Affordable Care Act people not only have to buy insurance, but they have to buy insurance for things that they won’t need. For example, every insurance plan must include coverage for maternity care. But fifty percent of the population will never need that care.
However, that does not seem to be a constitutional problem. There is no real question that Congress can pass a law saying that in order to sell health insurance in the United States, insurers must include coverage for maternity care. That is the type of regulation of commerce that is common and uncontroversial from a constitutional perspective.
So, in order for Roberts to accept the argument that everyone is in the health care market but vote to strike down Obamacare because it forces people to buy something they don’t want, he would essentially be saying that the only way for Congress to require everyone to purchase health insurance would be if the health insurance market were otherwise wholly unregulated. That would be an awfully strange result.
Roberts was also very concerned about the idea of a limiting principle. One possible limiting principle is that Congress can only force people to pay for things in advance with insurance if everyone is necessarily in the market. That principle makes sense. If everyone is necessarily in the market, nobody is really being forced to purchase anything. Congress is just altering the way that people pay for things in that market.
But based on Roberts’ comments, it seems that although he might find that limiting principle valid, he might be in need of a second one. The problem with the first limiting principle is that it gives Congress free reign over the field of health care. Roberts seemed concerned that Congress would be able to force people to purchase other things in the name of regulating health care. For example, Congress might be able to force people to purchase broccoli or a gym membership to improve overall health care and reduce costs in the health care market.
The attorney for the Obama Administration argued that health insurance is unique: it is only a means of payment to the end of health care. It exists for no reason other than for providing a method of payment for health care. Contrarily, people eat broccoli and go to the gym for reasons other than to stay healthy. But Roberts did not seem to be persuaded by that argument at all. See page 39 of the transcript, for an illustration.
I think that Roberts could make it over this last hurdle a different way. He could simply say that forced purchases of broccoli or a gym membership are not actually regulations of health care. Roberts is concerned that the Court is supposed to give Congress a lot of leeway in regulating markets once the Court holds that Congress has the power to regulate that market. But the Court necessarily has the power to determine whether a certain regulation should be considered a regulation of a given market or not. Otherwise, Congress could regulate anything. As an example, Congress knows it has the power to regulate railroads. What is stopping Congress from passing a law saying that everyone must purchase broccoli and justifying the law as one that regulates railroads (because railroads transport broccoli). The answer is that courts would step in and say, “that is ridiculous, this is a regulation of the broccoli market, not of the railroad market.” Well, Justice Roberts could make the same distinction here. He could reasonably conclude that a law requiring the purchase of health insurance is a regulation of the health care market, whereas a law requiring the purchase of broccoli is not.
Now, if I were to be forced to predict the fate of the individual mandate, I would predict that it will be struck down. If it is upheld, the fifth vote will almost certainly come from either Chief Justice Roberts or Justice Kennedy. What I find interesting is that those two justices would use entirely different reasoning to uphold Obamacare. Kennedy basically places every law relying on the Commerce Clause on a sliding scale of federal authority and everything that falls on the “not too much power” side on the Kennedy scale is fine with him. Roberts uses a much more technical and refined approach. So, it matters not only whether Obamacare is upheld, but also which five justices vote to uphold it.