Now that I’ve woken from the first full night’s sleep since the Supreme Court’s three‐day Obamacare marathon began, I can share my thoughts on how the argument went, in case you haven’t seen my first and second days’ reports for the Daily Caller:
- The Anti‐Injunction Act: On an argument day that can best be described as the calm before the storm, it quickly became clear that the Supreme Court would reach the constitutional issues everyone cares about. That is, regardless of how the justices resolve the hyper‐technical issue of whether the Anti‐Injunction Act is “jurisdictional,” this law — which prevents people from challenging taxes before they’re assessed or collected — does not apply to the Obamacare litigation. There were also hints that the Court was skeptical of the government’s backup merits argument that the individual mandate was justified under the Constitution’s taxing power. Perhaps the only surprising aspect of the hearing was how “cold” the bench was; it’s rare for the justices to allow advocates to speak at length without interruption, but that’s what they generally did today. That’s yet another indication that the Court will get past the AIA appetizer to the constitutional entree.
- The individual mandate: From Justice Kennedy’s noting that the government is fundamentally transforming the relationship of the individual to the government, to Chief Justice Roberts’s concern that “all bets are off” if Congress can enact economic mandates, to Justice Alito’s invocation of a hypothetical burial‐insurance mandate, to Justice Scalia’s focusing on the “proper” prong of the Necessary and Proper Clause — and grimacing throughout the solicitor general’s argument — it was a good day for those challenging the individual mandate. Paul Clement and Mike Carvin, who argued for the plaintiffs, did a masterful job on that score, showing again and again the unprecedented and limitless nature of the government’s assertion of federal power. The solicitor general meanwhile, had a shaky opening and never could quite articulate the limiting principle to the government’s theory that at least four justices (and presumably the silent Justice Thomas) were seeking. While trying to predict Supreme Court decisions is a fool’s game, the wise should take note that if Tuesday’s argument is any indication, Obamacare is in constitutional trouble.
- Severability: The most likely ruling on severability is that all of Obamacare will fall along with its fatally flawed individual mandate. While such a result would be legally correct, it would still be stunning. Perhaps even more remarkable is that the severability argument proceeded under the general assumption that the mandate would indeed be struck down. This was not a mere hypothetical situation about which the justices speculated, but rather a very real, even probable, event. There’s still a possibility that a “third way” will develop between the government’s position (mandate plus “guaranteed issue” and “community rating”) and that of the challengers (the whole law) — perhaps Titles I and II, as Justices Breyer and Alito mused (and as Cato’s brief detailed) — but the only untenable position would be to sever the mandate completely from a national regulatory scheme that obviously wouldn’t work without it.
- Medicaid expansion/coercion: The justices don’t want to reach the factually complicated and legally thorny Medicaid issue. That may be another marginal factor pushing one or more of them to strike down all of Obamacare under a straightforward severability analysis and leave the “spending clause coercion” issue for another day. This was perhaps the most difficult of the four issues to predict, and having heard argument doesn’t really make that task easier. A majority of the Court was troubled by the government’s “your money or your life” stance, but it’s not clear what standard can be applied to distinguish coercion from mere inducements. Then again, if this isn’t federal coercion of the states, I’m not sure what is.
General post‐argument reaction: All of my pre‐argument intuitions were confirmed, and then some: The Court will easily get past the AIA, probably strike down the individual mandate, more likely than not taking with it all or most of the rest of the law (including the Medicaid expansion). Still, it was breathtaking to be in the courtroom to see the Chief Justice and Justices Scalia, Kennedy, and Alito all on the same page. (For example, when Justice Kennedy’s first question during yesterday’s hearing was, “Can you create commerce in order to regulate it?” — a question hostile to the government — my heart began racing.) Much as I’d love to think that my briefs helped get them there even a little bit, ultimately it’s the strength of the constitutional claims and the weakness of the government’s positions that prevailed — or will prevail if the opinions that come down in three months follow along the lines set by this week’s arguments. They may not of course — trying to predict the Supreme Court isn’t a science—but I’m coming out of this week feeling very good.
Finally, for links to all of Cato’s briefs and my last series of op‐eds on the Obamacare litigation, see Monday’s blog post.