In this post I set forth all of the questions that Justice Kennedy asked the three attorneys at oral argument today in the health care case. Evaluate for yourself which way this "swing justice" is tending.
As we all know, Justice Kennedy is the swing justice; as he goes, so goes the Court. During today's oral argument in the health care case he asked tough questions of all three attorneys: Solicitor General Donald Verrilli, Attorney Paul Clement on behalf of the states challenging the individual mandate, and Michael Carvin on behalf of the individual plaintiffs.
Questions to Solicitor General Donald Verrilli:
Can you create commerce in order to regulate it?
Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?
I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?
Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause? [General Verrilli responded that Congress could not mandate insurance in markets in which insurance does not serve as the method of payment.]
But why not? If Congress -- if Congress says that the interstate commerce is affected, isn't, according to your view, that the end of the analysis.
I'm not sure which way it cuts, if the Congress has alternate means. Let's assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power.
On the other hand, it means that since the Court can do it anyway -- Congress can do it anyway, we give a certain amount of latitude. I'm not sure which the way the argument goes.
But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.
Questions to Attorney Paul Clement:
Is the government's argument this -- and maybe I won't state it accurately. It is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks. That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?
But they are in the market in the sense that they are creating a risk that the market must account for.
Questions to Attorney Michael Carvin:
[Attorney Carvin stated that the government "used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured." Justice Kennedy stated:]
I agree -- I agree that that's what's happening here.
And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case.
The justices had no questions for Solicitor General Verrilli during his four minutes of rebuttal.
What to make of this? Several news outlets are reporting that the individual mandate is in trouble - that the five conservative justices strongly signaled that they intend to find the individual mandate unconstitutional. See Carrie Budoff Brown, Josh Gerstein, and Jennifer Haberkorn, Politico, Conservative justices skeptical of individual mandate; Huffington Post, Supreme Court Health Care Law: Justices Come Down Hard On The Mandate.
That is not my impression. Certainly Justice Scalia unequivocally indicated that this was his view, and perhaps Justice Alito as well. It is safe to assume that Justice Thomas will vote to strike down the law. But Chief Justice Roberts, though skeptical, did not show his hand.
As for Justice Kennedy, I would describe his questions as thoughtful, probing, and careful - just what we would want from any justice in such an important case and what we would expect from the Court's "swing justice."
In short, Justice Kennedy has doubts. And in a case such as this - where Congress labored a full year to draft landmark legislation enacting a comprehensive statutory program of regulation - legislation that represents the culmination of a generations-long struggle to create a system of universal health care - any doubts must be resolved in favor of the constitutionality of the law.
The courts do not make economic policy - the legislature does. Based on today's oral argument I predict that Justice Kennedy and therefore the Court will uphold the individual mandate.
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.