Justice Kennedy's Million Dollar Question
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.
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Comments:
Jan '11
Re: Justice Kennedy's Million Dollar Question
Randy Barnett is a national treasure.
Dec '10
Re: Justice Kennedy's Million Dollar Question
It is best to refrain from the inventorying domestic fowl prior to completion of gestation.
Nov '11
Re: Justice Kennedy's Million Dollar Question
Love it:
Most lawyers don't give a damn about the Constitution or history (I guess those two things kind of go together). To quote Charlie Sheen, it's all about "Winning".
Edited on April 3, 2012 at 3:40pmFeb '12
Re: Justice Kennedy's Million Dollar Question
Given the fact that Medicare now costs ten times what was predicted and that there is fraud, waste and abuse, exactly how are we supposed to accept the premise that the federal government would do a good job of controlling health care for everyone? And the estimated cost of Obamacare is already off by 100%. How about a provision in a law that says if the costs exceeds 20% of budget, the law is voided?
Dec '10
Re: Justice Kennedy's Million Dollar Question
I really hope the question wasn't just a feint. I could see Kennedy using it as a "CYA" if he goes the other way.
Jul '11
Re: Justice Kennedy's Million Dollar Question
KP, I could see anything including threats of the most sinister nature involved here. What else was Obama's statement yesterday but a veiled threat?
Sep '10
Re: Justice Kennedy's Million Dollar Question
I would think that the President's comments today might enfuriate a moderate who fancied himself as not interfering although they are obviously all objective, disinterested judges who would never allow their emotions to enter into their judgement...cough, cough, I'm fairly certain they are also human beings.
Re: Justice Kennedy's Million Dollar Question
And so is Richard Epstein.
Just so's you know, Richard, you've been my Virgil through the inferno of this case, the wise guide, the seeing one. My, but it's good to be able to rely on your commentary.
If I may, one question:
Charles Fried served as Solicitor General under Ronald Reagan. A Reagan appointee, arguing in favor of ObamaCare. Does...not...compute. What am I missing?
Feb '11
Re: Justice Kennedy's Million Dollar Question
"the health-care market in the United States 'operates on a national level,' in which everyone, almost inevitably, will sooner or later participate."
So does the food market, the lumber market, the mattress market, the clothing market, the housewares market, the batteries market, the music market, the movie market, the car market, the computer market, well you get the idea...
Mar '11
Re: Justice Kennedy's Million Dollar Question
Richard Epstein:
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.
This statement is a blatant fabrication. How does health insurance operate across states lines when by federal Law I am only allowed to buy insurance in the state I live? Then again they say health care not health insurance so they have a fig leaf to cover themselves. So what % of the medical services are purchased out-of-state. So if lets say if 90% of all commerce in health care takes place in the same state are the residents in what justification does congress have to regulate 100%
Am must be missing a major case that says that even if .000001% of a industries transactions take place across states line congress has the right to regulate 100% of the industry.
I mean what are the guidelines/attributes of what constitutes interstate commerce and what does not?
Edited on April 4, 2012 at 1:27amAug '10
Re: Justice Kennedy's Million Dollar Question
Seconded!
Peter Robinson
And so is Richard Epstein.