Requiem For ACA at SCOTUS & Legitimacy Of Court and Case

The Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare” had a bit of a rough go of it this week at the Supreme Court. Jeff Toobin called it a train wreck (later upgraded to plane wreck). Kevin Drum termed it a “debacle” and Adam Serwer a “Disaster“.

Was it really that bad? Considering how supremely confident, bordering on arrogant, the Obama Administration, and many of the ACA’s plethora of healthcare “specialists”, had been going into this week’s arguments, yes, it really was that bad. Monday’s argument on the applicability of the tax Anti-Injunction Act (AIJA) went smoothly, and as expected, with the justices appearing to scorn the argument and exhibit a preference to decide the main part of the case on the merits. But then came Tuesday and Wednesday.

Does that mean the ACA is sunk? Not necessarily; Dahlia Lithwick at Slate and Adam Bonin at Daily Kos sifted through the debris and found at least a couple of nuggets to latch onto for hope. But, I will be honest, after reading transcripts and listening to most all of the audio, there is no question but that the individual mandate, and quite possible the entire law, is in a seriously precarious lurch.

Unlike most of my colleagues, I am not particularly surprised. Indeed, in my argument preview piece, I tried to convey how the challenger’s arguments were far more cognizable than they were being given credit for. The simple fact is the Commerce Clause power claimed by Congress in enacting the individual mandate truly is immense in scope, – every man, woman and child in the United States – and nature – compelled purchase of a product from private corporate interests. Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too.

I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case. Yes, cases such as Raich and Wickard established Congress could regulate interstate commerce and Morrison and Lopez established there were limits to said power. But, no, none of them directly, much less conclusively, established this kind of breathtaking power grant as kosher against every individual in the country.

Despite the grumbling of so many commentators that the law was clear cut, and definitively established in favor of the mandate, it wasn’t, and isn’t. And I was not the only one on the left who found the challenging arguments serious, Professor Jonathan Turley did as well (see here and here).

There is no particular need to rehash all the different arguments, and iterations of them by the scores of commentators (not to mention the participants in the case, of course), that has already been done elsewhere, actually everywhere, ad nauseum. There is one area I do want to touch on, at least briefly, though. Limitations of power. This is an important concept in Commerce Clause law, which is why I tried to focus on it in the argument preview article.

Simply put, the the question is, if the federal government can, via the Article I Congressional authority, stretch the reach of the Commerce Clause to every individual in the US, willing or not, as they did in the “ACA Individual Mandate” is there any power over the individual and/or the states, that is still out of bounds? Are there any limitations left on the ability of the federal to consume individual determination? What the Supreme Court looks for in such an inquiry are “limiting principles” that could constrain the power in the future. Another term of art used in the law is, is there any way to “cabin”, i.e. constrain, the power?

In addition to the preview post, I also asked colleagues on Twitter (here and here) to describe proper concepts that would accomplish the goal. For over a day, until the reality that – gasp – this was also the concern of the justices, there was literally no discernible response. Once that reality, forced by the Court, set in however, attempts came fast and furious. Nearly all were rationalizations for why the ACA/mandate was necessary and/or desirable, but were not actual limiting principles.

It was a bit of a trick question, because the best lawyers in the government and amici did not do so hot in that regard either. Out of all I have seen, the one that struck me as fairly easily the best was propounded by Professor Jack Balkin:

The Moral Hazard/Adverse Selection Principle
Congress can regulate activities that substantially affect commerce. Under the necesary and proper clause, Congress can require people to engage in commerce when necessary to prevent problems of moral hazard or adverse selection created by its regulation of commerce. But if there is no problem of moral hazard or adverse selection, Congress cannot compel commerce. Courts can choose different standards of review to decide how much they want to defer to Congress’s conclusion.

Nice, tight and definable. Not bad. Still leaves a lot of ground – likely far too much – open to suit the apparent Supreme Court majority forming. So, when you read, here or otherwise, discussion about “limiting principles” or “cabining”, this is what is being contemplated.

As usual, Justice Anthony Kennedy is the critical swing. And Kennedy’s general understanding (and consideration here) of liberty is instructive. The following lays it out quite well, using both quotes from last Tuesday’s oral argument and background, and comes via Adam Liptak at the New York Times:

Paul D. Clement, representing 26 states challenging the law, had a comeback. “I would respectfully suggest,” he said, “that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”
Justices tend to ask more questions of the lawyers whose positions they oppose, and Justice Kennedy posed six questions to Mr. Verrilli and just three to the two lawyers challenging the law.

The questions to Mr. Verrilli were, moreover, mostly easy to read. They were crisp expressions of discomfort with the administration’s arguments.

“Can you create commerce in order to regulate it?” Justice Kennedy asked.

“This is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce” he said. “If that is so, do you not have a heavy burden of justification?”

“Can you identify for us some limits on the commerce clause?” he asked.

Those questions fit neatly within one strain of Justice Kennedy’s understanding of liberty, one he discussed at length last year in an opinion for a unanimous court.

Limiting federal power, he wrote, “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

There is a Constitutional desire, and instruction to, colloquially, have limitation on federal power and to reserve rights to states and liberties to individuals. The Supreme Court, and Justice Kennedy (and to a lesser extent Chief Justice Roberts), in the ACA arguments was grappling with these concepts. How they find them, and decide them, will determine the outcome on the mandate.

One way or another, the case on the mandate will be decided. In the preview post before oral arguments began, I predicted either a 6-3 decision to uphold the constitutionality of the mandate or a 5-4 decision against it. The odds on the latter have soared. At this point, I would rate the odds at 50:50 either way. But, sometime – likely near the end of June – there will be a decision and the victory dance by the winning side and caterwauling and demeaning of the “politicized Court” by the losers will commence. That pattern will play out regardless of which party wins, and which party loses.

As described in both the instant post, and the preview piece, the arguments are indeed contentious, but they are also quite real. There are fundamental differences, over fundamental interpretations of fundamental rights. And, despite the often PT Barnum like contentions of the ACA cheer squad on the left, and from the Obama Administration, the nature and reach of the mandate truly is unprecedented and never was “unquestionably constitutional” as so many claimed. The left created their own self sustaining echo chamber and convinced themselves a truly controversial mandate was self fulfilling and golden.

The arguments against the mandate by the challengers are not wrong or silly simply because made by the “other side”. There IS merit to their concern, even if you ultimately believe the mandate should be upheld. Which has made it distressing, to be kind, to see the efforts of many of my colleagues on the left to demonize and degrade the questions and apparent inclination by the conservative bloc of the Roberts Court during oral arguments.

It took Jonathan Chait at New York less than a day after the fateful oral arguments to start salting the thought the court was somehow illegitimate:

The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators.

Chait’s fellow dedicated ACA supporter, Jonathan Cohn at The New Republic quickly weighed in with his hyperbolic joinder:

Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act.

Now something else is at stake, too: The legitimacy of the Supreme Court.

Even Dahlia Lithwick and Professor Richard Hasen, both of whom I respect somewhere beyond immensely, in separate articles at Slate, joined the chorus of casting stones of Court legitimacy degradation.

Please, folks, just stop. The question on the mandate is legitimate, and the other side believes their position every bit as much as you do yours. While there is certainly case precedent in the general area, there is just as certainly none directly on point with the way the “commerce” in this mandate is framed and “regulated”.

The Supreme Court is inherently a political body, at least in that its Justices are politically appointed. Presidential candidates of both stripes campaign on the type of Justices they would appoint if given the opportunity. Further, the Supreme Court is the final arbiter of the most controversial questions, that habitually involve mixed issues of politics and law, and has been ever since Marbury v. Madison.

Charges against the legitimacy of the Supremes have also been extant since the time of Marbury v. Madison, and continue into the modern set of decades with cries by the right against the Warren Court, to the bookend cries by the left against the Burger and Rehnquist Courts. The Supreme Court survived all those, and is still ticking after Bush v. Gore and Citizen’s United. It will survive this too.

And, as David Bernstein pointed out, why in the world would the left undermine the Court’s legitimacy when it is one Presidential appointment away from taking over the ideological majority? No kidding. I respectfully urge my colleagues on the left to step back, take a breath of air, and rethink the idea of degrading the Court over this case.

Those, however, are not the only reasons Democrats and the left should take a step back and rethink how they are reacting to the SCOTUS consideration of the ACA mandate. I pointed out in the ACA/SCOTUS preview post that progressives and conservatives were both, strangely, arguing contrary to type and ideology on the mandate. In a really bright piece of counterintuitive and intelligent thought, Jon Walker points out just how true that was:

If Conservatives get their way and the Supreme Court strikes down the individual mandate to buy health insurance, it would be a real victory for them; but in the end, the last laugh may be with actual progressives. While in this case an individual mandate was used to expand health coverage, similar individual mandates are the cornerstone for corporatist plans to unravel the public social insurance systems created by the New Deal/Great Society.

The basic subsidies, exchanges and individual mandate design that defines the ACA are at the heart of many corporatists’ attempts to destroy/privatizes the programs progressives support the most.

There are are two main ways for the government to provide universal public goods. The first and normally best way is to have the government raise money through taxes and then use that money to directly provide the service to everyone. The other option is to create an individual mandate forcing everyone to buy the service from private corporations while having the government subsidize some of the cost. These needless middlemen mostly just increases costs for regular people and the government. This is why corporations love this setup and push hard for it.
If the Supreme Court rules against this individual mandate in a way that basically makes it legally impossible to replace most of our current public insurance systems with mandated private systems, that should be seen as a big silver lining for progressives.

Go read the entire piece by Jon Walker, as it contains specific instances and discussions that are important.

In closing, I would just like to say it is NOT the case that the conservatives are definitely right in their challenge to the individual mandate in Obamacare, but it is a lot closer case than liberals make out, and liberals are being blind to the potential downside of it being upheld. All of these factors make the situation different than has been relentlessly painted; there are legitimate arguments on both sides and the Supreme Court will make a tough decision. Whatever it is, that will be their decision. It was a flawed law when it got to the Supremes, and they will still maintain legitimacy and respect when it leaves, regardless of how they sort the hash they were served.

[Article updated to reflect author Jon Walker for the last link, not David Dayen]

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
42 replies
  1. Phoenix Woman says:

    Thanks, Bmaz. Then again, maybe, just maybe, the folks like Lithwick et al are pulling an eleventy-dimensional form of Br’er Rabbit Chess: They’d really like to see the individual mandate go and leave the rest of the law intact for all the reasons you and DDay say they should, but they don’t want Roberts/Scalia and their crew to know this, so they start in with the burn-down-the-Court stuff to make R/S think they want the individual mandate.

    Yeah, I nearly pulled a muscle laughing at that thought, too.

  2. janinsanfran says:

    One just wishes that we had a Supreme Court that gave a damn about any liberty except that of the greedy winner in the capitalist system. If that sort is the only “liberty” that survives in this country, it becomes hard to take law seriously as anything but the embodiment of the interests of the powerful.

    Thanks for this cogent post.

  3. P J Evans says:

    Killing the ACA won’t help insurance companies as much as they’d like: a lot of people getting it with the ACA can’t afford insurance without the subsidies. (Personally, I favor treating all insurance companies the same as public utilities: regulate what they can say and do, and require public hearings for every rate change request. And investigations every time someone gets turned down for no good reason.)

  4. allan says:

    ” …the left… when it is one Presidential appointment away from taking over the ideological majority…”

    … seems incredibly optimistic/naive about who, if given the opportunity, Obama will nominate.
    Chances are that it will be a horrible `centrist’ of the Cass Sunstein mold.

  5. bmaz says:

    @allan: Heh, naive? Have you not seen my judicial policy posts on just this topic? Yes, Obama is prone to mushy centrist judicial nominations (when he can be bothered to make them), but, still, a replacement of any of the conservative bloc with even an Obama nominee would hugely affect the ideological makeup. Not to mention that while I remain non-plussed with Kagan, Sonia Sotomayor has proved to be pretty darn good.

  6. Ben Franklin says:

    It’s a learning curve. I had no idea British Common Law which is threading our Constitution without specific reference, has so much influence over the Court. When Kennedy talked about the example of the blind man who is about to be struck by a vehicle, and that there is no requirement for anyone to come to his aid. I think usual suspects, very much, believe in this Dickensian World View. You are on your own. Community is irrelevant. I understand the abuse which can occur when government can require citizens to demonstrate Community values, but the conservative Hobbesian Dystopia is frightening.

  7. Ben Franklin says:

    The Conservatives are, however, Corporatist, in their overall view. ACA is a tremendous boon to Insurance Co’s and Pharma. I believe oral arguments, in this case, are Kabuki. They are preparing their lessers (Tea Party Promisers) for giving the Mandate a pass.

    If they strike it down, it will again open the debate about the Constitutionality of Medicare.

    And we know where that’s gonna take us……don’t we?

  8. Brian Silver says:

    bmaz, I’m very sympathetic to your summary. But to me, the $64 question reaches beyond the current case — with its nearly solitary focus on Congress’s power under the Commerce Clause. It’s perhaps not surprising that the case did not focus on the question of individual liberty, but rather on the powers of Congress, and of the federal government vis-a-vis the states. But suppose this case had been a challenge to government mandates, including those of states and their legally established entities (counties, cities, special districts). Can any government in the United States compel people to buy something they do not want to buy?

    We already know that states can and do compel people to buy automobile insurance. I suppose the argument there is that having a drivers license is a privilege, and that in exchange for being granted that license one can be required to offer up what amounts to a bond to assure that you can pay for any injuries or damages to others resulting from your exercising that privilege.

    But why can a state compel somebody to buy health insurance, or to pay an individually mandated tax to cover health insurance? Take the Commerce Clause out of the equation. What are the limits in the ability of a STATE to compel commerce?

    We have plenty of history to show that state laws and law enforcement have done enormous damage to individual and group rights in areas that tend to be regarded as the states’ own policy bailiwick (e.g., education, marriage) but that have broad impact on civil rights of American citizens. And in the case of racial discrimination the “law of the land” (e.g., 14th Amendment) and laws of Congress (e.g., Civil Rights Act, Voting Rights Act) have superceded those of states. What gives the Commonwealth of Massachusetts (to take an arbitrary example) the power to compel individual citizens of the United States to engage in commerce? Couldn’t the core argument by the states against the ACA’s individual mandate also be turned against the states themselves in the mandates that they place on U.S. citizens?

  9. guest says:

    Thanks for your analysis. As someone in favor of HCR (medicare for all, please), I have been alarmed at the “mandate” provision from the very beginning. The argument always comes down to the fact that the mandate is essential to make the law work. As written, I have to agree. But it still doesn’t pass the smell test.

    As for picking on Chait and the other losers who I don’t bother to read, in their defense, the court really is illegitimate at least since Bush v Gore (end of argument). They can and probably will call that legitimacy into further question when they write their crappy politically biased opinions against ACA (and even some of the “liberals” will probably do so in their opinions in support). There was no need to to try to diminish anyone and everyone who questions the legitimacy of the SCOTUS.

  10. Ben Franklin says:

    , the court really is illegitimate at least since Bush v Gore

    That’s the second portion of my theory it will go 7-2. They, despite protestations to the contrary, are still stinging from Bush v Gore. They are highly cognizant that History will probably find them redolent of bad odor. Their super egos are their capital, and they want that asset, in the bank, as it were.

  11. allan says:

    @bmaz: Yes, I gratefully read almost everything here. :)
    And, yes, as Obama’s two appointments so far have shown, it is sometimes very hard to predict in advance how judges will vote once they’re on the court. But the judicial spectrum from which his choices will be selected will be so centrist that `the left’ will be denied a reliable vote,
    in a way that, somehow, the right has not been denied since Bork.

  12. fflloydd says:

    recently read (economics blog ?)1) congress required purchase of guns (well known) 2) congress required merchant seamen to purchase health insurance !!!!!!!

  13. jcc2455 says:

    Terrific comment bmaz. Personally, I’m not going to shed tears for the ACA if it goes down. It is a terrible law from both a political and policy perspective, its nominal progressive progress in expanding coverage achieved at far too high a cost. Half of the coverage expansion (Medicaid expansion) was an unfunded piece of political fakery from the start.

    the arrogance that went into the creation of the law is reflected in its supporters’ stupidity regarding the commerce clause issues in front of the Court. They’ve all been so much smarter than us all this time. After all, Medicare for all, or even Medicare for more people, was a silly idea, politically impossible to achieve, and there was no reason to take that approach, already tested against the commerce clause, when there was such a nice, unquestionably legally defensible corporate-friendly alternative.

    But the real damage is the possibility that the Supremes’ ruling will create paths to strike down Medicaid and Medicare, as dday pointed out in passing the other day. Would love your thoughts on that.

  14. bmaz says:

    @jcc2455: Even striking of the ACA would not harm Medicare, at least not constitutionally. In fact, the ACA mandate would have been just fine constitutionally if it had been framed as a general tax and expend measure, as Medicare is.

  15. Mauimom says:


    But bmaz, don’t you think Ruth Bader Ginsburg will be the first to go? There’s no one Obama would be inclined to appoint, or who could get through the Senate, that would be as liberal as she is.

    And once Obama’s shot his wad on getting someone — ANYONE — through, he won’t have any bargaining chips left for the “replacement” of whichever right-winger retires.

    Also/and/or he’ll make some “deal” with the Repubs to put a Cass Sunstein clone on as his “liberal,” in exchange for putting up Robert Bork to “balance” their concerns.

    I only see bad things in this regard.

    However, thanks a lot for your cogent analysis, and particularly the glimmer of hope that they’ll strike down this horrid mess and provide a chance to do something better.

  16. bmaz says:


    The “purchase of guns” you mention stems from the Militia Act of 1792 – The point of the Militia Acts of 1792 (Is actually the Second Militia Act of 1792 that is at issue) was for a limited purpose of defense and was passed under the Militia Clause, NOT the Commerce Clause. Further, there were inherent limitations placed within its effect. It applied only to able bodied males between the ages of 18-45. Second, the requirement was to possess, not necessarily to purchase, and certainly not to purchase from effectively monopolistic for profit entities. Might also point out that many historians, consider the act to be a gross failure because it imposed shitty and unusable standards for the musket and armament equipment that bankrupted many young men.

    The Seamens Insurance – As to the “An Act for the Relief of Sick and Disabled Seamen.” you reference, it is absolutely apples and oranges distinguishable from the ACA. The differences may look small on the surface when disingenuously pitched, as Rick Ungar did, but they are enormous. First off, that legislation was a direct and specific tax, not an order to purchase. Secondly it was limited to a specific and dangerous profession and was thus more regulatory in nature. Thirdly, it did not compel purchase from private for profit business entities. Fourth, you could opt out by engaging in another occupation, you cannot with the ACA

  17. Ian Welsh says:

    I am not a lawyer, and I don’t play one on blogs. I have no idea whether the individual mandate is constitutional. What I do know, is that it is very anti-liberty, bad policy as currently incarnated in the law, and basically a right wing idea from the 90’s. Why progressives want to die on a hill for the individual mandate, one of the shittiest ideas to come out of DC in decades, is beyond me.

    This sort of thing is why I have almost as much contempt for Obamapologists as I do for other right wingers.

  18. masaccio says:

    The issue of the Supreme Court’s politization is not striking down the mandate, it’s what happens to the rest of the statute. Suppose the only provisions to go were the mandate. Congress could easily fix the problem with a straight-forward tax. You pay a special tax of X% of your income, and you get an exemption from the tax if you have coverage meeting certain standards, no matter where you get it.

    If the democrats stood firm, they could force this through as long as they control one house or have an effective veto in the White House. The insurance companies will either support the provision, or they will raise prices so high that people will revolt, and demand congressional action even from the crazy party.

    So, the entire issue of credibility of the Court turns on the scope of loss, not the loss itself. In that regard, Scalia has made it clear that the mandate is the linchpin of the ACA, and so the whole thing goes if he can find a fifth vote, either Kennedy or Roberts.

    Striking down the entire ACA is a act of judicial aggression, not of Constitutional determination. It’s what you expect from ideological bullies.

  19. bmaz says:

    @masaccio: There is some merit to that thought. Keep in mind, however, that the Administration itself, at oral argument, left impression that the mandatory issue, community rating etc provisions, most closely tied to the mandate might well also have to be struck if the mandate was.

  20. Ian Welsh says:

    Individual mandate, as a policy matter, is what (in theory, but not in practice) allows things like mandatory issue to work due to adverse selection.

    In political terms, the primary thing the insurance companies got, in exchange for things like community rate, mandatory issue and so on, was the individual mandate. If the individual mandate goes, it is no longer a good deal for them and they will not support it.

  21. Mike Stark says:

    I’ve been saying that there is no limiting principal, nor should there be. Our Republican form of gov’t is all the limit we need. Wooried about compelled burial insurance, cell phone contracts, broccoli or excercise mandates? Take your worries to Congress. Truth is, I don’t think you will have to – any sensible congress is going to recognize that advocating for such accouterments is a fast track to career death.

    Moreover, we already have beef “check-off” programs. If you sell a head of cattle, you must pay a fee that goes to beef industry promotion. You don’t have a choice. Likewise, if you want to sell pharmaceuticals, you must jump through billions of dollars of bureaucratic hoops to get a new product to the market. You don’t have a choice – the costly regimen is mandatory. So… If drug manufacturers and beef producers (and any of millions of other market participants like car, clothing, electrical device and furniture manufacturers, to name but a few) can be subjected to scores of costly mandates, why not other individuals? Why must producers always suffer the burden? Why can’t consumers – the other half of the market – be subject to a mandate?

  22. bmaz says:

    @Ian Welsh: Right. And, in the event SCOTUS did punt the mandate, it would sure appear to me from oral argument, they will at least excise community rating and mandatory issue even if they do not dump the whole thing.

  23. scribe says:

    @bmaz: Remember, too, that there was no lack of screaming before passage – even over at FDL – that the ACA lacked a severability clause and that if one part was struck down, then all the law might be struck down.

    Remember, it’s such a fundamental aspect of statutory or contractal drafting to include a severability clause that people get fired for failing to do it. The hornbook principle is that if there is not a severability clause, the whole thing falls if one part falls. Leaving one out is called legal malpractice, unless leaving one out was exactly what your client desired. Given Obama’s deep control over the process by which this mess was written into law, and the contemporaneous public outcry for a severability clause, the conclusion is inescapable that Obama wanted to go all-in on this bill and hold hostage peoples’ need for health care, and no-prior-conditions-exclusion, and so on, by making them scream for health insurance.

    If the ACA survives and an honest history is written someday, Obama will go down in history as the greatest insurance salesman the world ever knew. The ACA would be enough by itself, but he’d go down in the books even bigger after his corporate sponsors go for the big kahuna – compelling you and me to invest in Wall Street-created retirement scams. If ACA survives, they’ll get that.

    Frankly, I thought before the arguments that either way the case came out, Corporate America stood to win. If it – particularly the mandate – survived, we’d wind up being compelled to purchase all sorts of crap from whatever industry had enough money, in a post-Citizens’ United world, to buy Congrss and the White House. Wall Street and Big Oil would be the leading candidates. If, OTOH, the ACA was to be struck down, I thought it likely Corporate America would be celebrating the end of Wickard, Carolene Products and the ability to regulate them. Now, I’m not so sure – I think the mandate can go away without any precedent being struck.

    But, I’m holding out hope Kennedy will come to his senses and vote down this atrocity. The thing is, the decisions are already made – the Court had their conference this week – and now it’s just a matter of writing the opinions.

  24. spanishinquisition says:

    I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case.

    Part of the reason claiming to pass the legislation was that Obama was TBTF and it seemed like the TBTF theme just kept on going all the way up to SCOTUS. Not that I think it is going to happen, but TBTF Obamacare certainly set itself up to be tossed completely by not having a serverability clause. The Obama administration wouldn’t even argue that the mandate itself could be severed by the court, so the court had to find someone else to make that argument. Seeing the Obama administration’s own arguments both in court and in public, if a large chunk or all of ACA gets tossed, it would be because of what they did rather than a sign of judicial activism.

  25. spanishinquisition says:

    @masaccio: “The insurance companies will either support the provision, or they will raise prices so high that people will revolt, and demand congressional action even from the crazy party.”

    Count me out. I’d say being a government for the corporations is the problem and that would just be another iteration of that.

    “So, the entire issue of credibility of the Court turns on the scope of loss, not the loss itself. In that regard, Scalia has made it clear that the mandate is the linchpin of the ACA, and so the whole thing goes if he can find a fifth vote, either Kennedy or Roberts.”

    The Obama administration itself has said that both in the courts and in public.

    “Striking down the entire ACA is a act of judicial aggression, not of Constitutional determination. It’s what you expect from ideological bullies.”

    So where can I find the severability clause in ACA? I’d say having SCOTUS decide what parts of the law can remain and what can’t even though there was no direction from Congress to that would be an act of judicial aggression as SCOTUS would be doing the job of Congress. I don’t think ACA is going to be tossed entirely, but having SCOTUS decide what can stay and what can go even though there is no direction from Congress to do that is actually judicial aggression rather than tossing ACA out entirely to be judicial aggression.

  26. spanishinquisition says:

    @Mike Stark: Both your examples are choices. There is no mandate that people start a business to become cattle barons and you even point out that becoming a drug manufacturer is a voluntary choice. You are trying to compare voluntary choices versus involuntary choices – or are you saying that people having the choice to commit suicide is that same thing as someone deciding to start a business selling cattle?

  27. scribe says:


    So where can I find the severability clause in ACA? I’d say having SCOTUS decide what parts of the law can remain and what can’t even though there was no direction from Congress to that would be an act of judicial aggression as SCOTUS would be doing the job of Congress. I don’t think ACA is going to be tossed entirely, but having SCOTUS decide what can stay and what can go even though there is no direction from Congress to do that is actually judicial aggression rather than tossing ACA out entirely to be judicial aggression.

    Exactly. It would be judicial activism of the first order, by any party’s definition, for the S.Ct. to decide which pieces of a statute to save and which to toss. Absent a severability clause in the statute, the Rule of Law is that the statute stands or falls as a whole. Any other act would be the Judicial usurping both the Legislative and Executive branches.

  28. thatvisionthing says:

    bmaz, re this:

    The Supreme Court is inherently a political body, at least in that its Justices are politically appointed. Presidential candidates of both stripes campaign on the type of Justices they would appoint if given the opportunity. Further, the Supreme Court is the final arbiter of the most controversial questions, that habitually involve mixed issues of politics and law, and has been ever since Marbury v. Madison.

    It’s me, not a lawyer, and still kinda stuck on the jury thing since my epiphany in traffic court (best civics class ever!). So when you mention Marbury (1803, Chief Justice John Marshall) as you talk about the Supreme Court being the ultimate decider, I see you are leaving out that the first Chief Justice, John Jay, earlier (1794) specifically deferred that court’s decision to the jury:

    It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy.

    — John Jay, first Chief Justice, Georgia vs. Brailsford

    (Like, how did they have a jury in the Supreme Court? I wonder about that.)

    Anyway, if 100 years later the Supreme Court itself hadn’t redefined juries out of all constitutional recognition in 1895 Sparf by deciding 5-4 that judges could skip informing juries of their right and duty to judge the law and nullify on a case-by-case basis according to their…

    JOHN ADAMS (1771): It’s not only ….(the juror’s) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.

    … then I wonder if the constitutional keel to this question wouldn’t be that if the court should decide the mandate is constitutional, juries should then be able to decide case by case the justice of prosecuting/imprisoning/fining/punishing individuals who failed to buy mandated insurance? Maybe so, maybe not? I understand juries nullifying Prohibition prosecutions had something to do with abolishing Prohibition (18th Amendment, 1919-1933). It was a law that fell apart from the bottom up. So if the question is 50-50 for the justices, and/or if it’s a political question, odds are that juries would decide 50-50? Your thoughts?

    There’s a beauty to that that I can see from here, which is that while it’s nice for the court to presume we all CAN buy increasingly inflated premiums, actually, really, we can’t. I notice they’re not mandating the increasingly inflating jobs that would allow us to afford the premiums. (Why is that?) The beauty I see is that juries would provide a reality check and balance that is totally missing. I think this relates to Ben Franklin’s British Common Law reference @6, because that’s where we got juries and jury nullification from. See John Peter Zenger. See the dissent in Sparf. See Scott Horton.

  29. Z says:

    I agree with Bmaz completely that the concerns that have been made by the opposition to the individual mandate are very valid … just becoz they are on the other side does not make them wrong 100% of the time (jeez, the mass stupidity that tribalism begets never ceases to amaze me) … and I have also been shocked at the weakly structured arguments by many on the left that the individual mandate is slam dunk constitutional. That’s ridiculous and there is indeed a real danger in allowing the federal government mandate to us that we have to buy a product from a private entity … a for-profit private entity by the way … with little or no cost controls. To claim that there is little difference between that and taxing for medicare … like krugman recently did … is either due to intellectual dishonesty or utter tribal driven stupidity … which we certainly don’t need any more of in this dysfunctional country.


  30. Z says:

    I also agree with those that say that the whole law should be thrown out if the individual mandate is. Otherwise the supremes are basically writing the law from whatever they decide to extract or throw away from the 2700 page health-insurance-industry-lobbyist-written monstrosity.

    Note that the obama administration, staying true to their unspoken credo to put corporate interests above the people’s, have themselves argued that the mandate is inseparable from the community ratings and coverage of pre-existing conditions stipulations … still faithfully complying with the corrupt backroom deals they did with the health insurance companies and pharmas.


  31. Z says:

    I think that the reason that the folks that thought that the individual mandate would barely cause a yawn from the supremes was that it is such a corporatist court and the mandate is obviously very corporate empowering. Personally, I wouldn’t be absolutely shocked if alito and/or roberts … more likely roberts from what I’ve read from the supremes’ questions … shocks everyone and goes along with it. They’ve both been very loyal votes for corporate interests.


  32. Ian Welsh says:

    If the court does just sever wouldn’t that be better for what the left says it wants: still have guaranteed issue, etc… without the individual mandate? If I were the Roberts court, that’s what I’d probably do, and make Obama beg Congress to kill his own bill–the good stuff in it, that progs like, not the bad stuff.


  33. Roman Berry says:

    I just want to say “Thank you!” So….thank you. Both you and the majority of the commenters here are a breath of cool calm air in discussing this issue.

    I never understood why the mandate was supposed to be a slam dunk constitutionally and the prospect that it was scared the beejeezus out of me. We have a constitution that is supposed to limit the power of government. The reading of the commerce clause that so many Democrats under Obama want gives us a government with no clear limits.

    If the federal government can mandate that everyone simply by the act of being alive is mandated to buy one for profit product from a private corporation based on an argument that boils down to “you pay now or we all pay later”, where does the argument stop? What exactly is the limit? Does the limit in that case merely rest in the good faith and intent of our political leaders now and at all times in the future?

    The entirety of the ACA is a conservative’s “market based” approach to health care, and Democrats had the good sense to reject this approach in the past. But the words “health care” seem to be like the one ring of power to Democrats these days, and a lot of partisans chasing after it are screaming “My precious! My Precious!” with no regard for what it’s doing to them.

    I’m a liberal. The ACA is not a liberal thing. The goals may be, the means is not and the end does justify the means. I hope that the mandate is struck. And if the lack of a severability clause means the entire bill goes, that’s a loss, but it’s a loss that Harry Reid and Barack Obama decided on when they gambled that the USSC would not strike a law that was “too big to fail.”

  34. Z says:

    @Ian Welsh:
    Hey Ian,

    I hope all is going well with you. You probably remember me, I used to be a frequent poster on your board and was one of the more acerbic ones at times. I haven’t commented there recently becoz there isn’t much that I disagree with you about … I’ve come to many of the same conclusions myself … but I still usually learn something from reading your essays.

    Anyway, I hope that the supremes would just sever the individual mandate too … and keep the rest of the bill completely intact. Not only would it be fun watching obama trying to dismantle his own bill becoz it doesn’t have the mandate (while still attempting to conceal the obvious truth that he was blatantly looking out for corporate interests in this bill over the people’s), it would also be awfully amusing watching changing their position from demanding a public option in the bill; to threatening to primary any democrat that didn’t vote for a bill that DIDN’T have a public option in it … because of all the “good things” in it; to taking the stance that the bill is completely unacceptable if we aren’t forced to buy insurance from private for-profit insurance companies. They’d probably do it though, and file it all under “we got to support our president during an election year”.


  35. Ian Welsh says:

    Yeah Z. I was commenting a friend that if I were a Conservative court justice it would just tickle me pink, I’d just laugh myself sick every night, by making Obama have to kill the bill at the behest of the insurance companies.

    Much like I imagine Putin laughing himself sick every night about America begging him to use Russian access to Afghanistan. “I get to charge them to destroy themselves in Afghanistan! ahahahahahahaha!”

    Ah, Schadenfrude.

  36. SpanishInquisition says:

    @Ian Welsh: I wonder if the conservative Justices would just strike down the mandate – and not gauranteed issue and community rating – just for that reason. That would put Obama and the rest of the corporate Democrats in a well-deserved pickle. I think it would further help expose how corporate the Democrats are. I expect the Democrats would go flailing about and the Republicans would do nothing to get them out of their mess of their own creation – they’d punish both the Democrats and the insurance companies for going with the Democrats. If the Democrats had done a non-corporate bill that actually reduced costs, they wouldn’t face being in that position now.

  37. Yastreblyansky says:

    @Ben Franklin: Hilarious, isn’t it: the Democrats have been working their tails off for decades to save the country from “socialized medicine” and the Republicans refuse to cooperate. Indeed, that’s what’s weird about the mandate argument. Since we have to buy insurance from the government all the time (unemployment, workmen’s comp, Medicare) the argument is that a socialist system is “more constitutional” than a market-based one, and people have a hard time wrapping their heads around the thought that the Constitution could be in some sense a leftist document. But I think bunches of corporatists (like these) have duly reflected on the matter and decided the mandate just might be constitutional after all, and the Court will follow.

  38. perris says:

    hey guys, miss you!

    Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too

    I thought the same, however david linked to something this morning which has changed my mind

    Has the federal government done it before? Yes, that’s the Militia Act of 1792, where you had to buy your own musket. You needed to buy an ammunition pouch. A knapsack. It was a very detailed mandate. So Obamacare’s critics say, in response, “that’s justified based on a different clause.” Okay, but the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a “well-regulated” militia with a mandate, why can’t Congress regulate interstate commerce the same way?

    from here

    would LOVE your take on that bmaz, does it or does it not apply?

    thanks in advance

  39. jawbone says:

    bmaz. my only discomfort with your post is in saying it was “the left,” those “on the left” who were pushing this particular individual mandate.

    In its management of the whole health insurance reform legislation, which I feel was intended to ensure profitability for the for-profit health insurers and was what they wanted, there was no room allowed for the actual left opinion to even be discussed, evaluated, much less legislated.

    The left wanted single payer, on the lines of Medicare for All, only much improved.

    Obama said he thought single payer was impossible to attain in any form (including allowing buy-in to Medicare for people nearing Medicare age who had lost their jobs, and thus their insurance if they had it, and could not afford the $1000 to $1800/month for individual insurance). Thus, he not only announced it was “off the table,” but he also dismissed its advocates as the “little single payer advocates.” Later that summer, the WH live blogging of a presidential health care [aka, insurance, no care guaranteed] forum in Iowa also failed to include [censored?] the one questioner from one of those “little single payer advocates.”

    I’m not trying to refight getting attention paid to single payer in the lefty, make that left-ish, blogs who let themselves be corraled into a WH Free Speech Zone, but some on the left never gave up on single payer or other forms of universal health CARE. The actual left on the health CARE issue realized the corner the administration was painting itself into and tried to get the left to push Obama away from the consevative honey trap of RomneyCare.

    That’s all — otherwise, while the arguments by some of the Supremos was somewhat juvenile, the basic question is valid and important.

    What I fear is Roberts using this to undermine the great social program accomplishments of FDR and LBJ. Just because there is a valid argument doesn’t mean these conservative justices won’d come up with another one-off or even go full bore against the underpinnings of SocSec and Medicare.

    Gonna be interesting.

  40. bmaz says:

    @jawbone: Yeah, you know, that is a fair statement. It was certainly not all the left, and certainly the progressive left was fairly vocal about wanting a “public option” even if they could not get single payer.

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