ObamaCare and the Court, Day 2

Our favorite justice, Alito, emphasized our argument:

JUSTICE ALITO: ...here the reason why there is cost shifting is because the government has mandated that. It has required hospitals to provide emergency treatment, and instead of paying for that through a tax which would be born by everybody, it has required — it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

MR. CLEMENT: Justice Alito, that is exactly the government's argument. It's an extraordinarily illogical argument.

Tangentially, the Chief Justice employed his characteristic style of argument: frame the liberal premise -- in this case that the Lochner era was an "unhappy period" to which we would never, ever wish to return -- as arguing the conservative conclusion.

CHIEF JUSTICE ROBERTS: Well, now why is that? Congress could — once you — once you establish that you have a market for health care, I would suppose Congress's power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be — it would be going back to Lochner if we were put in the position of saying no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways. I think that would be a very significant intrusion by the Court into Congress's power.

Both Kennedy and Kagan wondered out loud "whether the determined efforts of Congress not to refer to this as a tax make a difference." But not Breyer, despite advocating "enforced by the legislature" as a "limiting principle." Breyer and Sotomayor, more or less, seemed to advance their view of commerce clause power without practical limit.

Ginsberg had, one of the stronger arguments of the day -- "There's something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that's fine, but if the government wants to get — to preserve private insurers, it can't do that" -- and one of the weakest, arguing that insurance "works" by forcing one group of people to subsidize another.

On the whole, Roberts seemed sympathetic to the government's argument that "almost everybody is going to enter the health care market" with the caveat that "you cannot say that everybody is going to need substance [ab]use treatment... and yet that is part of what you require them to purchase." While Kennedy seemed to waffle (or wobble?), a decision which upheld the mandate only narrowly for catastrophic care, might be the impractical kind of equanimity Kennedy in winter seems to like best.

ObamaCare and the Court

There are three basic arguments in support of Obamacare's constitutionality.

The first, and perhaps most honest, is political: The administration will ensure there are grave political consequences should Obamacare be overturned. To this end, influential surrogates argue that any legal opposition to Obamacare is partisan and illegitimate.

The second is both most common and, to my ears, incoherent. The argument is congress has a right to impose the individual mandate because "The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually." These costs, of course, are economic activity entirely created by government rules requiring hospitals treat people who cant pay. By way of analogy: Do liberals really believe that the government can pass a law requiring all restaurants feed anyone who comes in regardless of ability to pay, and then -- because restaurants would otherwise all go out of business -- mandate that everyone eat out once a week or pay a penalty?

The most compelling argument is, for lack of a better term, "realist": The conservative argument "liberty is at stake," is undermined by the recognition that congress could have accomplished the same policy through constitutionally permissible, if politically impossible, means. The weakness of that argument is, simply, it frames a vote against Obamacare as a vote for the rule of law. Further, if the liberal view is that liberty is best protected by voters rather than courts, then the courts ought be hostile towards laws that would be politically impossible pass properly.

One gets the sense that Roberts (and, for different reasons, Kennedy) is very sensitive to political pressure, and -- given the reasonable chance elections will wash this issue away -- would be very eager to punt. A punt -- hampering the economy with continued uncertainly -- would also be most damaging politically to Obama. On the other hand, should Kennedy wish to honor his lifelong federalism, he will likely be on much safer political ground in overturning, now, the medicaid expansion.