Latest flood news: Coralville Lake down to 700.34 feet | Dubuque Street partially reopened (More info)
Law professors Todd Pettys and Andy Grewal consider the issues in the Supreme Court's impending health care decision
Main Page Content
These originally appeared as blog entries in the Des Moines Register during the Supreme Court's oral arguments between March 27 and 29.
The Supreme Court asked Robert A. Long — a prominent partner in the D.C. office of Covington & Burling, and a seasoned veteran of Supreme Court litigation — to defend a proposition that none of the parties wanted to defend: namely, that the Anti-Injunction Act of 1867 requires the federal courts to delay deciding the constitutionality of the individual mandate until someone has actually been penalized by the Government for failing to purchase health insurance. The Anti-Injunction Act essentially says that taxpayers cannot sue in advance to avoid paying a tax they believe is illegal; instead, taxpayers must pay the tax and only then can they go to court and argue that the tax was improper. The government and its opponents agree that, for a variety of technical reasons, the Anti-Injunction Act does not prevent the court from going ahead and addressing the constitutionality of the individual mandate now. Some prominent federal judges have disagreed with that conclusion, however, and have said that opponents of the individual mandate jumped the gun by challenging the mandate before it has actually been enforced. Just to be safe, the Supreme Court decided to appoint Long to come in and argue that the Anti-Injunction Act applies and that the court should not decide the constitutionality of the individual mandate until that mandate has actually been enforced (which won’t occur until 2014 or 2015).
Predicting outcomes based on the justices’ questions is always a little dangerous, but the justices’ questions today seemed strongly to indicate that the court does not believe the Anti-Injunction Act poses any obstacle to deciding the case now. Of the eight justices who asked questions today, none seemed sympathetic to Long’s argument. Rather, the justices’ only apparent disagreement concerned the precise reasons why Long’s argument should be rejected. Some of the justices indicated that they believed the Anti-Injunction Act’s restrictions could be waived by the government, while others indicated that the Anti-Injunction Act doesn’t even apply in this case because the penalty for failing to purchase health insurance would not be a “tax” within the meaning of the statute. After Long stepped down from the podium, the attorneys representing the parties took turns addressing the court. Tellingly, several of the justices seemed uninterested in asking those attorneys questions about the Anti-Injunction Act. Instead, those justices appeared eager to take advantage of the opportunity to ask questions aimed at clarifying their understanding of the complicated health care legislation in preparation for the arguments being held on Tuesday and Wednesday.
The Government’s attorney faced a grueling round of questions at the Court today, particularly from Chief Justice Roberts, Justice Scalia, Justice Alito, and, to a much lesser extent, Justice Kennedy. Two major themes emerged in those questions. First, a few of those Justices stressed that, looking back over more than two centuries of American history, it is difficult (if not impossible) to find clear instances in which Congress forced people to buy a product they did not want to purchase. If we let Congress do this, some of the Justices suggested, then Congress can do virtually anything it wants, and the Federal Government will no longer be a government of limited, enumerated powers. Justice Kennedy, for example, said that allowing the Federal Government to require individuals to purchase something they don’t want would “change the relationship of the Federal Government to the individual in a very fundamental way.”
Second, some of the Justices indicated that the individual mandate aims to solve a problem that is largely of the Government’s own making. These Justices said that, having decided to require hospitals to provide care for people regardless of their ability to pay, and having opted against simply imposing a national tax to subsidize health care for the uninsured, the Government has now chosen to try to fix the problem by forcing young, healthy people to purchase health insurance that they might not need until they are much older. Justice Scalia pointed out, for example, that the Government could simply opt not to require hospitals to provide emergency care for those who are unable to pay, or could opt not to require insurers to cover people who appear likely to have high medical bills. Justice Kennedy similarly pointed out that Congress could have created a national, single-payer health insurance system, and that it chose instead to take what might be the unprecedented step of forcing people to buy something they don’t want.
Justice Ginsburg, Justice Sotomayor, Justice Breyer, and Justice Kagan all asked questions that reflected much greater sympathy for the Government’s position. The Government’s attorney argued that uninsured people already are in the healthcare marketplace (because they’re running risks that the rest of the marketplace must take into account when setting the prices for healthcare costs and health insurance premiums), and so it’s wrong to think that the individual mandate forces people to enter a marketplace in which they are not already players. Several of the Justices appeared receptive to that argument. Justice Kagan, for example, said that there’s no doubt that some of the nation’s uninsured will encounter unexpected, costly medical problems this year. Why, she asked, shouldn’t Congress be allowed to make the judgment that because we can’t predict which people will find themselves in that predicament, we should simply require all of them to cover the risk by purchasing health insurance policies? Even Justice Kennedy—a critical actor on this stage—indicated some attraction to this argument, stating at one point that the nation’s uninsured are creating risks for which the rest of the market must take account, and that in this sense we all are already players in the healthcare marketplace, whether we like it or not.
Justice Ginsburg repeatedly compared the insurance mandate to the Social Security system. Both, she said, require people to spend some of their money in ways that they might not like, even when they are young and healthy and are years away from needing the benefits of the system they are helping to fund. The Social Security system was deeply controversial when first adopted, she said, but now most of us accept the system as a proper exercise of the Federal Government’s power. One day, she implied, we will say the same thing about the individual mandate.
Two final points are worth stressing. First, although much of the focus today was on the Commerce Clause, the Government is also arguing that Congress may require people either to purchase health insurance or pay a penalty as a function of Congress’s power to tax. That is not a frivolous argument, and it might well end up being the basis on which this case is decided. One can imagine a scenario, for example, in which the four more conservative Justices are joined by Justice Kennedy in saying that this is not a valid exercise of the Commerce Power, but in which the four more liberal Justices are joined by Justice Kennedy in saying that it is a valid exercise of the Taxing Power.
Finally, to the extent that the Justices manifest skepticism when they ask questions during oral argument, the pattern of questioning today was very interesting. I’ve done a rough count of the number of questions each Justice asked when the Government’s attorney was at the podium and the number of questions that each Justice asked when the critics of the individual mandate were at the podium. I provide those rough numbers here, in that sequence: Chief Justice Roberts, 17-5; Justice Scalia, 25-1; Justice Alito, 11-2; Justice Breyer, 2-12; Justice Ginsburg, 5-9; Justice Sotomayor, 6-21; Justice Kagan, 3-8. As one would predict, the Court’s conservatives asked far more questions of the Government and the Court’s liberals asked far more questions of the law’s challengers. Justice Thomas has not spoken at the bench in many years, though he very likely will vote to strike down the mandate. That leaves Justice Kennedy. His questions ran roughly 5-3, making him—as usual—one of the most difficult Justices to read, and the Justice who likely holds the key to resolving the individual mandate’s fate.
During Tuesday’s arguments, Justice Kennedy made it clear that he is wrestling with the question of whether the individual mandate is unconstitutional (unlike most of his colleagues, who apparently have already reached their own conclusions on that question). One of the main issues debated at the Court today was what should happen if the Court does indeed strike down the individual mandate: should the rest of the 2700-page statute be allowed to stand, should the whole thing be struck down, or should only parts of it be struck down (and, if so, which parts?). There are scores of politically popular programs in those 2700 pages. There are provisions, for example, that bar insurance companies from refusing to issue policies to high-risk individuals, that provide benefits for black lung disease, that allow young people to remain on their parents’ policies, and on and on. Now put yourself in Justice Kennedy’s shoes. If you believed that the rest of the statute should stand, then striking down the individual mandate might seem like a middle-of-the road course of action: opponents of the individual mandate would be pleased and the millions of beneficiaries of the statute’s other provisions would have things to be pleased about, as well. But it appears that Justice Kennedy is not inclined to make his job easier in that way. His comments and questions today suggest he believes that, if the individual mandate is declared unconstitutional, then the entire statute should be struck down, including all of those popular programs that have little or nothing to do with the individual mandate itself. That really ups the stakes when deciding what to do with the individual mandate.
The government’s statutory arguments Monday put it in a somewhat odd position for today’s constitutional arguments. Monday, the government argued that the penalty for not buying health insurance does NOT qualify as a “tax” under the tax statute. But today, the government will change gears and argue that Congress’s taxing power under the Constitution allows it to collect the penalty. It will be fun to see how the justices respond to this apparent contradiction, although the government has provided an explanation in its briefs.
Political insiders sometimes joke that Grover Norquist, the anti-tax zealot, is the most powerful man in Washington. But judging from Monday’s arguments, that title may belong to Justice Anthony Kennedy. The four most conservative justices seem poised to strike down the mandate, a position that the four liberal members probably won’t support. That may leave the fifth and deciding vote to Kennedy, who expressed both skepticism about the mandate and reservations about striking down this lynchpin of the health care legislation. The fate of the law — and perhaps even President Barack Obama’s re-election chances — may thus depend on how Kennedy wrestles with the issues over the next few months.
In today’s severability arguments, the court had to confront some of the ugly realities of the political process. If the court struck down the entire health care bill, could it expect Congress to again directly address the problems in the health care market? Or if the court struck down only the individual mandate, and health care premiums consequently spiraled upward, would Congress overcome its “legislative inertia” and fix the other parts of the legislation? The justices expressed some discomfort about whether these types of policy concerns should be taken into account when deciding the underlying legal issues, but they clearly recognized that their decisions could not be made in a vacuum.