The entire landscape of Congress’s constitutional powers changed on March 27, 2012, when, very early in the argument over the individual mandate, Justice Anthony Kennedy asked a somewhat shaken Solicitor General Donald Verrilli this simple question: “Can you create commerce in order to regulate it?”
I was as surprised by that opening gambit as everyone else. But surely not as dismayed, as I explain in my weekly column. As three full days of oral arguments confirmed, that one question turned the constitutional showdown over Obamacare into a real horse race, with a five to four vote to strike the mandate down perhaps now the most likely outcome. The public realization, with this one question, was that the moderate Justice Kennedy, long regarded as the perennial swing vote, had bought into the argument of the opponents of the statute, chiefly crafted by Professor Randy Barnett of Georgetown University Law Center.
The individual mandate, which requires all individuals either to purchase health insurance or pay a penalty, may be struck down by the Court as unconstitutional, in isolation from the remainder of the Patient Protection and Affordable Care Act. The law’s regulation of the private health-care market, and even its extension of Medicaid may go down with it.
Prior to March 27, the confident assumption of the American constitutional establishment (of which I am decidedly not a charter member) was that the government would cruise to victory on the constitutional issue for the simple reason that health care was such a large part of the overall economy that Congress could effortlessly regulate it in order to produce a coherent national plan to address the chronic problems of the health-care market.
As professors Charles Fried and Abbe Gluck put the point in their brief on behalf of 104 constitutional law professors in the United States, the health-care market in the United States “operates on a national level,” in which everyone, almost inevitably, will sooner or later participate. Not content to note the size and ubiquity of the health-care market, they observed further that the health-care law will actually “improve health care outcomes nationwide” by its combination of broader health-care insurance in the private market, coupled with community rating in the individual market. These wildly optimistic statements were made without a shred of evidence in their favor.
In fact, the far more likely outcome in this case is that both the traditional private health-care markets and the new government exchanges will buckle under their regulatory burden. In my view, it was a tactical mistake for the defenders of the ACA to paint a rosy picture of so controversial a statute. In so doing, they opened themselves up to the implicit criticism that if the ACA did not achieve its lofty goals, it would dragoon ordinary people into a scheme built to fail. Could that have been the implication of Justice Kennedy’s question? The last thing that any defender of the ACA should want to do is make its constitutionality turn, even in tiny part, on the soundness of its legislative scheme, as I explain further over at Defining Ideas.