Updated with CNN link.
I have a new piece on CNN.com explaining my view that the health care litigation poses an unimportant legal question but an important political question. Meanwhile, my latest Verdict column analyzes Tuesday's merits argument in the health care litigation through the lens of three sets of hypothetical questions, each of which poses the problem of how the lawyers would cabin the principles they respectively espouse to win the case. As I note in the column, for the plaintiffs, there were two hard questions.
1) Justice Breyer's question: If the federal government cannot impose affirmative mandates, does that mean that, e.g., the federal government could not require inoculation against a deadly communicable disease? Aren't there other vital things the federal government needs to mandate? E.g., jury duty, the draft. As I read the plaintiffs' answers, they would like to limit their no-mandate rule to the Commerce Clause on the textual ground that it authorizes regulation of existing commerce. The government, of course, says that this very case involves existing commerce (more on that below in point three), but even if one disagrees, the plaintiffs' response still founders on Justice Breyer's question, in which the inoculation mandate is predicated on the interstate commercial effect of non-treatment of the disease.
To be sure, during the oral argument, Justice Breyer may have undermined the effectiveness of his hypo by appearing to agree with Michael Carvin (for the NFIB) that the argument for federal power in the inoculation case is of a piece with the argument for federal power in United States v. Morrison, where Breyer dissented from the Court's holding that Congress lacked the power to enact the civil remedy provision of the Violence Against Women Act. That made it look like the Court had already effectively rejected the notion that Congress could impose an inoculation mandate to combat a deadly disease in Morrison and that Justice Breyer was simply trying to re-open the issue.
But that appearance is false. In Morrison the Court held that gender-motivated violence is not economic activity and thus not regulable under the Commerce Clause, given that regulation of gender-motivated violence is in no way connected to some larger regulatory scheme. But that objection does not apply in the inoculation hypo. Consider a slight variation: Suppose that instead of requiring inoculation, the federal government sought to quarantine already-infected people in their homes on the ground that leaving their homes would spread the disease. Wouldn't that be a valid exercise of the Commerce Clause on the ground that spreading the disease is economic activity (albeit harmful economic activity in the way that the economic activity of growing marijuana is harmful in the Raich case)? And if the federal government can quarantine on this ground, then it can inoculate on this ground--unless the Commerce Clause distinguishes between mandatory quarantines and mandatory inoculations. It might so distinguish if there is a prohibition on the regulation of inactivity, but if so, that's got nothing to do with Morrison.
2) The plaintiffs also faced a very hard question from Justice Sotomayor about the tax power. As I explain in the column, I thought that Paul Clement's answer was just wrong, while Mr. Carvin's answer was necessarily formalistic. My sense from the oral argument was that there aren't five votes to sustain the minimum coverage provision as a tax, but that the reasons for that position aren't at all clear. I think the best that can be said against sustaining it as a tax is that some people who are subject to the mandate are not subject to the penalty if they don't pay it. But to mind that means that at most the Court ought to strike down the mandate (if it cannot be sustained under the Commerce Clause) as applied to the people subject to it but not subject to the penalty. And because most such people will be eligible for other forms of health insurance (like Medicaid), striking it down as applied in this way would not do much violence to the rest of the Act.
3) That brings me to the hard question that was posed for Solicitor General Verrilli: What is the limiting principle? Justice Alito asked him this question point blank. The SG offered two limiting principles. Here I will quote what he said in full:
[a] When Congress is regulating -- is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme.
[b] With respect to the -- with respect to the -- considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the -- the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.
A number of people have been criticizing the SG for his performance and I don't mean simply to pile on, but I'm afraid that I agree with the criticism. I have no doubt that SG Verrilli worked extraordinarily hard to prepare for this case, but his answer to Justice Alito was poor. Proposition (a) seems to be saying that Congress can regulate something--activity? activity or inactivity? economic stuff?--when doing so is necessary to counteract a risk created by its regulation of something else. Okay, perhaps, but that's not a limiting principle. A limiting principle should include a limit. It should not only say what Congress can regulate but also what it cannot regulate.
Proposition (b) is a very inartful way of saying that the limiting principle is defined by the facts of this case. But surely the SG does not mean that. Is he saying this case is unique? Why? Simply restating what the law does is not the same thing as explaining why other laws that do other things would not be valid.
SG Verrilli should have rehearsed a one-sentence answer to the limiting-principle question and should have had some simple examples of things Congress cannot do.
How would I have answered Justice Alito's question? As a substantive matter, I would not have conceded that there is any general prohibition on the regulation of inactivity, although I would have made the government's argument as an alternative point. I would have said more or less the following (which I would have rehearsed and had on a piece of paper at the podium):
This Court's cases already establish a limiting principle. If the regulation does not concern the channels or instrumentalities of interstate commerce, then Congress may enact laws regulating either "economic" activities--as in Raich but not Lopez or Morrison--and Congress may also enact laws that do not regulate economic activity where doing so is part of a comprehensive scheme that regulates interstate commerce--as Justice Scalia's concurrence understood the law at issue in Raich and as Justice Alito's concurrence understood the law at issue in Comstock. Those are the limiting principles this Court has already established, and they're fully operative here.
Now, let's apply the test, including its limiting principles. The mandate is valid under either prong. Congress may regulate the timing and manner of the purchase of health services, which is a kind of economic activity, or, in the alternative, the mandate is necessary and proper to the comprehensive scheme Congress enacted governing health insurance.
Even accepting the plaintiffs' characterization of the minimum coverage provision as regulating inactivity, the prior limits remain. The Gun Free School Zones Act (invalidated in Lopez) and the civil remedy provision of the Violence Against Women Act (invalidated in Morrison), are still beyond the scope of the Commerce power. Acknowledging a "mandate power" in Congress would not enable Congress to circumvent those limits. Thus, sustaining the mandate would in no way give to Congress a police power.
Finally, if the Court is worried that sustaining the mandate would license Congress to mandate economic activity as a general matter, the Court could easily announce a rule that Congress may not require economic activity where its only plausible rationale for doing so is simply to push people not fairly characterized as already engaged in current market activity, or likely to be engaged in future market activity, into such activity. Under such a principle, if Congress simply wants to encourage market activity, it must use prohibitions of the Wickard v. Filburn sort rather than affirmative mandates. We think this further limiting principle is unnecessary because it's implicit in what the Court has already said in Lopez and Morrison, but we have no objection to its adoption.I'm not saying that's a perfect answer, but I do think that it's a substantially better answer than the SG actually gave, and I only took about 15 minutes to come up with it. Surely the government should have prepared better for what everyone knew was going to be the key sticking point of the case.