Commentary Magazine, May 2012
May 21, 2012
by Tevi Troy
For ObamaCare and its namesake, the period from March 26 through 28, 2012, will go down as three very bad days politically—and possibly as three epic days for our nation constitutionally.
The multiday argument in front of our nation's highest court—which usually grants only one hour per case—exhibited various shortcomings and contradictions in the Affordable Care Act of 2010. In a previous analysis for Commentary ("ObamaCare and the Supreme Court," February), I identified the four most likely scenarios for how the court will rule. First, it could overturn the individual mandate requiring all Americans to purchase private health insurance while maintaining the rest of the law. Second, it could overturn the law in its entirety due to the unconstitutionality of the individual mandate. Third, it could delay the decision until the individual mandate becomes applicable in 2014. Fourth, it could uphold the law in its entirety.
The latter two scenarios are the most preferable to liberals because they allow full implementation of the Obama health law to proceed apace. And it was precisely these two scenarios that became far less likely after the three days of argument before the Supreme Court.
It was an instructive three days, a civics lesson for a nation desperately in need of one; at the end of the argument, it was anyone's guess how the court would come down. And yet the distinct possibility of a ruling unfavorable to ObamaCare caused the president himself to utter some astonishing words regarding the Supreme Court's role only days after the argument was concluded. He suggested it would be "unprecedented" and "extraordinary" for "an unelected group of people" to find "a duly constituted and passed law" unconstitutional—as though that has not been the core role of the Supreme Court since the 1803 case of Marbury v. Madison, the most important judicial decision in American history, and one that our former constitutional law professor is surely aware of.
With those words, Obama anticipated the populist political argument that he will make if things do not go his way when the court issues its decision in June. He also, with little subtlety, put political pressure on the court to go his way. The three days at the court did indeed give way to something unprecedented. What was unprecedented was his conduct.
The first day was the least damaging to Obama's cause. It was dedicated to a highly technical question: Did the court have jurisdiction to rule on the constitutionality of ObamaCare before it went into full effect? At issue was the applicability of a venerable piece of legislation called the Anti-Injunction Act. If the individual mandate were to be considered a tax, then the court would not have jurisdiction until its imposition in 2015. Both sides could go home and then return to the court in three years. But since both the Obama administration and the anti-ObamaCare forces preferred to get an immediate answer, they argued the same side of the case, with a court-appointed attorney assigned to make the case for delay.
That lawyer, Robert Long, faced an uphill battle. The plaintiffs, defendants, and audience all wanted the cases to be decided, not postponed, and the justices themselves seemed to agree. This did not mean that the first day of argument was without consequence. One of the arguments the government found itself having to make—that the mandate was not a tax—would return to haunt it the following day and point to the contradictions behind the government's defense of the health law.
It is interesting that the Obama administration chose to take the position it did. Using the Anti-Injunction Act to delay consideration of the case could have allowed the administration to continue pursuit of the health-care law's full implementation while the legal case languished.
Instead, the administration seemed to care more about getting the bothersome court challenges out of the way and cementing the constitutional legitimacy of the president's signature achievement. Some on the left were not behind the strategy. According to a report in Politico, some progressive groups even urged then White House Counsel Bob Bauer to use the administration's leverage with the court to delay consideration of the case until after the 2012 elections. But they were rebuffed. Bauer and his team explained that the administration had confidence in its chances and was unconcerned about the politics.
This was indicative of the Obama administration's airy assumption that the court would hear its case favorably and view the constitutional concerns about the individual mandate in the manner of former House Speaker Nancy Pelosi. "Are you serious?" was her deeply considered view.
The second day of the arguments was the main event. It had the greatest impact on the in-court arguments and how the hearings were perceived beyond the walls of the court. The argument now centered on the constitutionality of the individual mandate to purchase health insurance, and the plaintiffs and defendants were properly arranged on opposite sides of the issue.
For decades, the government's power under the Constitution's Commerce Clause has been predicated on Wickard v. Filburn, the 1942 case that affirmed the government's prerogative to regulate how much wheat an individual may grow. Now the court was being asked to extend the principle of Wickard v. Filburn to inactive economic behavior—to judge that an individual's refusal or failure to purchase a private health-insurance policy nonetheless meant he was still a participant in the health-care market and therefore subject to Congressional fiat through the Commerce Clause. Constitutional or not, the mandate was a novel application of federal power.
Unfortunately for the Obama administration, Day Two of the arguments began with its primary advocate, Solicitor General Donald B. Verrilli Jr., stumbling out of the gate. Verrilli—who replaced Elena Kagan in the solicitor general's role when she was confirmed for a seat on the court—coughed and stammered through an uncomfortable opening whose ticks were gently excised from the day's transcript.
Nonetheless, Verrilli's halting performance quickly became part of the day's narrative. There is little doubt that Verrilli did a poor job on Day Two, but the focus on him was beside the point. His real problem was the law he was being asked to defend and the arguments he was being asked to make on its behalf. And this is where the first day's pregame exercise became relevant.
In order to counter the challenge from the Anti-Injunction Act, the administration argued that the mandate was not a tax. And yet on the second day, in order to defend the constitutionality of the mandate, the government was now arguing that the mandate was a tax. In fact, Justice Samuel Alito had even admonished Verrilli on this point on the opening day: "General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax." The government's position that the mandate is a tax when convenient and not a tax when inconvenient contravened basic logic.
But the bigger problem for Verrilli was his inability or unwillingness to articulate a "limiting principle" for the government's authority under the Commerce Clause—in other words, a limit to how far Congress can reach into private economic activity. The justices who seemed hostile to the government's argument threw out examples of other hypothetical services the government could demand individuals to purchase, such as cellphones in case of emergency and burial insurance. And then they asked if the same theory upholding the health-insurance mandate—that everybody needs these things, that everybody uses them, and that the failure to use them does not keep individuals out of the market—would allow for the imposition of comparable mandates as well.
Verrilli could not come up with an answer other than the idea that healthcare is sui generis, a market like no other, and that the mandate should be therefore considered self-limiting.
Aside from his poor performance and weak arguments, Verrilli's problems were compounded by the fact that his primary opposing counsel, Paul Clement, gave the argument of his life. Where Verrilli was tentative, Clement was sure-handed; where Verrilli was self-contradictory, Clement was smoothly consistent. A former solicitor general himself, Clement has been called the best advocate of his generation. Longtime Supreme Court watcher Lyle Denniston has gone further, declaring Clement the best Supreme Court advocate since Daniel Webster.
Clement is a considerable talent and gave an admirable presentation, but he was also greatly aided by having a coherent argument on his side. While it is clear that the government's case would have been in better hands had Clement still been solicitor general, it's not clear that the underlying case itself would (or could) have been any stronger.
The reaction inside the Beltway to the open hearing of these reasoned arguments over first principles was one of stunned surprise. The legal analyst Jeffrey Toobin's comments on CNN received the most attention, and thereby established the narrative for both the day and the entire extraordinary episode. The argument was "a train wreck for the Obama Administration," Toobin said. "And it may also be a plane wreck," he added. He compounded this by saying: "Well, it's hard to imagine how things could be going much worse for the Obama administration." The administration's most favored scenario—upholding of the entire law—seemed far less likely than it had only a few hours earlier.
The third day dealt with two questions: (1) whether the rest of the bill could stand if the mandate was found unconstitutional and (2) whether the expansion of the Medicaid program was an illegitimate federal coercion of the states. It did not go much better than the day before. The morning argument focused on the severability question: How much of the law should remain in place if the individual mandate, the chief source of the revenue necessary to pay for ObamaCare, were to be overturned? (Unlike many pieces of legislation, ObamaCare featured no direction to courts in its text when it came to this issue.)
This was extremely problematic for the Obama administration because it believed the question of severability should have been only a hypothetical exercise, given its certitude about the constitutionality of the mandate. Day Two showed how profoundly it had miscalculated on that score. Suddenly, the Obama administration needed severability as a live option to maintain as much of the Obama health-care behemoth as possible.
The Day Three arguments highlighted the enormous size and complexity of the Obama health law, a discussion that does not serve the administration well from a political perspective. Justice Antonin Scalia seemed to sense this, and he highlighted this discomfort for the administration with his trademark sarcasm.
Edwin Kneedler, now arguing for the government, said that severability "should be resolved by looking at the structure and the text of the act, and the court may look at legislative history to figure out what the text and structure mean with respect to severability." To this proposition, Justice Scalia responded by invoking the Constitutional prohibition against cruel and unusual punishment: "Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?" This exchange elicited laughter and colored much of the news coverage of the day, capturing the prevailing view of the American people about the law: It's a large, burdensome, and incomprehensible piece of legislation. And the forced reading of it would constitute torture for the justices.
Witty ripostes aside, although Scalia and the other justices do not relish the prospect of going through all 2,700 pages of the law, they—if they do not uphold ObamaCare in its entirety—will have to find some way to determine what would go down with the ship of the individual mandate and what would remain in place.
The presumption here is that the court, owing Congress due deference as the legislative branch of government, should be limited in its handling of what Obama called "duly passed" law. Just because one element is unconstitutional does not give the court the right to say the whole thing is bad and should be chucked out. Thus it should "sever" the bad and leave the good.
But that could not work in the case of ObamaCare, said those arguing against severability. If the court did rule the mandate unconstitutional and upheld the rest, such a ruling would not constitute deference to Congress—because whatever remained of the bill would differ so significantly from the one Congress passed that it would, in effect, be something new and unauthorized. As Justice Anthony Kennedy put it, "By reason of this court, we would have a new regime that Congress did not provide for, did not consider."
This suggested that he, the court's key swing vote, might prefer asking Congress to consider the health question anew rather than arrogating to the justices themselves the power to determine which aspects of a large and complex law should survive and which should not.
After the conclusion of the severability argument, the court considered whether the law's Medicaid expansion was an unconstitutional imposition on the states that forced them to either adopt federal rules or lose all federal Medicaid dollars. This discussion elicited contrasting views of the beneficence of the federal government.
Having seen the weakness of the government's advocates in the previous arguments, some of the liberal justices seemed determined to make the government's case for them this time.
Justice Kagan, who had worked in the Obama administration and cheered the passage of ObamaCare in an email to liberal legal scholar Laurence Tribe, questioned howgiving money to a state could constitute an illegitimate use of federal power. Clement suggested that there could be circumstances in which this could indeed be considered coercive. Kagan (who attended a Green Day concert with Clement in 2010) slipped into informality in her reply: "Wow, wow. I'm offering you $10 million a year to come work for me, and you are saying this is anything but a great choice?" Clement would not fall into Kagan's trap. He would have concerns if "actually it came from my own bank account," he explained, quite reasonably. "And that's what's really going on here in part."
Meanwhile, the solicitor general continued to run into difficulties. At one moment, Scalia asked Verilli for a hypothetical to illustrate a central point in the government's argument—a standard-issue query in a Supreme Court hearing. When Verrilli faltered, Scalia responded with a coup de grâce that summed up Verrilli's bad week: "I wouldn't think that is a surprise question, you know?" He said he couldn't think of a hypothetical that would bolster Verrilli's argument either.
Toward the end of his final presentation, Verrilli tried to win over the justices, particularly Justice Kennedy, with the curious argument that the Obama health-care law advances the cause of liberty. Kennedy is known for couching his opinions in the language of liberty, and so Verrilli attempted to appeal to him by linking Obama's expansion of Medicaid with "the blessings of liberty." He did so by asking the justices to think of how health coverage adds to the liberty of "a husband whose wife is diagnosed with breast cancer and who won't face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone."
Even in this, he was bested by the fluid Clement, who, in his rebuttal, replied with an improvised closing that was far more effective:
Let me just finish by saying I certainly appreciate what the solicitor general says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it's a very strange conception of federalism that says that we can simply give the states an offer that they can't refuse, and through the spending power, which is premised on the notion that Congress can do more because it's voluntary, we can force the states to do whatever we tell them to.
There is no doubt that the presentation of this argument, and the weakness of the government's case, increased the odds that the individual mandate, and perhaps the entire law, will be struck down as unconstitutional. Going into the case, the conventional wisdom was that the challenge did not have a chance. One survey, by Supreme Court reporters, projected that the law would be upheld. Another study, by former Supreme Court clerks, made the same prediction, with only 35 percent thinking that the individual mandate would be ruled unconstitutional. And 85 percent of "legal experts" identified by the American Bar Association predicted that the law would be upheld. After the arguments were aired, however, the shocked comments from legal experts such as Toobin suggested that liberals badly misread the strength of their case, just as they continue to misread the popularity and efficacy of ObamaCare itself.
But in addition to improving the likelihood that the law will be overturned, something more powerful, and perhaps more important, was gained as well. The Supreme Court case, and the fierce attention it received, presented a rare opportunity for the potent conservative critique of liberalism to make it out of the conservative ghetto, as it were, and onto the national stage.
The congressional debate over the Obama law, during which key decisions were made behind closed doors, was strangulated; and how the majority party jammed through the law with procedural legerdemain in a strictly partisan way was a dereliction of public duty. What we saw at the court in those three days at the end of March was an open debate in the full light of day—one that seems to have scared the wits out of those who preferred working their will on the American people in partial darkness.
Tevi Troy is a Senior Fellow at Hudson Institute and served as the Deputy Secretary of the U.S. Department of Health and Human Services from 2007 until 2009.
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