Health Care Arguments Day Two: Mandate Under Fire
Not by a long shot.
Predictably, Justice Scalia made it clear that he was not buying the administration’s argument that it had the power to mandate individuals purchase insurance. Sure, Justice Scalia seemed to concede, regulating the health insurance industry (an industry that is about one-sixth of the overall economy) in such a way may be a necessary exercise of government power, but is it proper?
Justice Kennedy seemed very troubled by the impact of upholding the individual mandate, particularly on “liberty” interests. But by the end of his questioning he suggested that, no matter how problematic the individual mandate may be, health care may be a unique enough to warrant unusual treatment. Justice Alito pressed the issue of whether the government could force individuals to buy burial insurance as well, reinforcing a sense of skepticism with the conservative wing that the mandate should stand.
But what does this all mean?
It means that predicting an outcome on the case based on oral-arguments is a fools game. Oral arguments are designed to iron out concerns and clear up points of confusion. Minds are usually not changed during oral argument, unless of course the judges haven’t read the briefs. And we all know that is not the case here.
But if we’re going to speculate, I’ll play the fool. I would urge you to consider the space between Justice Kennedy’s questions and Justice Alito’s. Kennedy is a less likely “yes” vote than Chief Justice Roberts, so that last bit could be telling. Court insiders still believe the mandate will be upheld, and likely upheld in a lopsided majority, as opposed to the political press that is determined to create a constitutional crisis out of the case. Over the course of the argument Kennedy softened just a bit suggesting he’s not a for-certain no vote and, grabbing Alito’s question regarding burial insurance I think we are witnessing a Court in search of a line to draw. If they draw that line I’d expect the mandate to survive.
That’s not really a bad thing. A ruling that the federal government has the broad authority to compel individual purchases in markets if there’s some overall impact on the national economy is not necessarily a good rule of law. Instead, a narrow look at the mandate in the context of its impact on national commerce is. And that’s where the questions lead and that’s where I would expect an opinion to follow.
Tomorrow’s arguments look at the real sleeper argument in the schedule, the Medicaid expansion. Here the states are challenging the Medicaid expansion as unconstitutional because it’s too good to turn down. Should the Court agree the impact will go well beyond health care reform and impact other federal/state partnerships in such areas as public education, special education and environmental programs. The Court will also consider the severability argument–that is, if the mandate falls does the entire law.
A decision on the merits is not expected until June.
Photo from abeeeer via flickr.