How the Constitutional Challenge to the Individual Mandate Could Win By Losing

By Mike Dorf

As I noted in my FindLaw column last week, the Supreme Court's recent decision in U.S. v. Comstock strengthens the already very strong case for upholding the individual mandate in the health insurance reform law as valid Commerce Clause legislation.  I wrote in the column that nevertheless, "it is possible that five Justices could vote to invalidate the individual mandate to purchase health insurance. In my view, doing so would be very difficult to square with the rulings in Raich and Comstock, but predicting how the Supreme Court will rule on any issue is an inexact science at best."  What I had in mind was the possibility that the Court could disregard or give an idiosyncratic interpretation to its precedents, in the fashion of Bush v. Gore.  I did not mean to suggest that this is a close case on which reasonable minds could differ about how to faithfully apply the precedents.

What, then, explains the fact that Republican attorneys general around the country are pressing their extraordinarily weak case against the mandate?  Here I'll explore three non-exclusive explanations.

1) Not every state AG is an expert in constitutional law.  A casual reader of the federal Constitution could well think that the individual mandate--indeed, much of what the federal government does--is outside the scope of the powers delegated by the Constitution.  And such a casual reader would only be wrong in the sense that his straightforward reading has been rejected by history and Supreme Court doctrine.  But given political opposition to the health reform law, a relatively uninformed state AG might instruct his staff to file a challenge.  He would hear that there is a difference of opinion on such matters, but he would chalk up that difference itself to ideology.  Even if he were moderately informed, he could find Cato Institute white papers and other scholarly works arguing against the mandate's constitutionality.  An only moderately informed AG would not realize that the government's contrary argument is much stronger.

2) Some number of the challengers to the individual mandate probably don't care whether they prevail in court.  They could simply be seeking to rally the base.  Or, more charitably, they may take a "departmentalist" view of constitutional interpretation.  Under such a view (which I have elsewhere described as legitimate), members of Congress and state officials, no less than judges, are entitled to act on their own independent understanding of the Constitution.  Certainly Republicans who thought the mandate was unconstitutional were entitled to vote against it as a bill.  State AGs are likewise entitled to litigate against it.  But absent a Bush v. Gore-esque bolt from the blue, they should expect to lose.

3) Finally, let me float a conspiracy theory which I do not believe to be causally explanatory at a fully conscious level: Losing a challenge to the mandate would be good for the Republican Party, especially if the case goes to the Supreme Court, and thus gains visibility.  The current Supreme Court is basically conservative except in the roughly quarter of the ideologically divided cases when Justice Kennedy swings liberal.  Nonetheless, some of those cases are very high profile, as would be a challenge to the individual mandate.  If such a challenge were to fail by a vote of 8-1 (the outcome I would regard as most likely), that would reinforce a widely held view that the Court is substantially more liberal than it is.  That, in turn, would further rally conservative voters and activists, and shift public debate over the Court even farther to the right.  Thus, challengers to the mandate could win by losing.