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ObamaCare in Peril?

Posted By Jacob Laksin On March 28, 2012 @ 12:55 am In Daily Mailer,FrontPage | 43 Comments

If Monday’s technical arguments about whether it was proper for the Supreme Court to hear a challenge to ObamaCare at this time marked the opening salvo in the showdown over the Obama administration’s signature legislation, yesterday’s argument session was the high-profile main event.

The issue argued before the justices concerned the most contentious element of the legislation: whether Congress exceeded its constitutional powers when it passed an individual mandate requiring individuals to purchase health insurance or pay a penalty. This is hardly a theoretical question. Given that the legislation depends on the mandate to provide it’s funding, it is no exaggeration to say that the fate of ObamaCare hinges on how the court decides that point.

The Obama administration’s strategy so far has been to insist that the legislation is not really forcing anyone to purchase anything. Solicitor General Donald Verrilli, the government’s lawyer, attempted to make that case yesterday by arguing that the legislation is simply regulating a market in which people are already participating, namely health care. It’s not compelling them to buy a particular product. In this account, since the Constitution’s Commerce Clause allows Congress to regulate economic activity, the individual mandate is constitutional.

One problem with this argument is that, in the case of the individual mandate, Congress is regulating not economic activity but rather what might be called “economic inactivity,” specifically the act of not purchasing health insurance. That contention was advanced by the National Federation of Independent Business, one of the opponents of the legislation and a plaintiff in this week’s hearings, which argued in its brief that “uninsured status neither interferes with commerce or its regulation nor constitutes economic activity. Instead, the uninsured’s defining characteristic is their non-participation in commerce.” If it is now within the government’s constitutional authority to require private citizens to participate in a certain economic activity, what is the defining limit of its power?

Justice Anthony Kennedy took up that very point in yesterday’s hearing, pointing out that the government’s reasoning for regulating health care could apply equally to, say, food. A similar argument has in fact been made by ObamaCare’s opponents, who point out that if the government’s rationale for the individual mandate is accepted there is nothing to stop it from passing a “broccoli mandate,” for instance, on the justification that it wants to regulate the food market. Pressing the point to its logical conclusion, Chief Justice Roberts added that if the court approved the individual mandate there would be little basis left for limiting Congress’s power. “All bets are off,” Roberts warned.

ObamaCare’s potential encroachment on individual liberty did not strike the same chord with the liberal justices, who actually went further than the government’s lawyer in defending the justification for the individual mandate. At one point during yesterday’s hearing, for instance, Justice Samuel Alito pointed that out that if the mandate was legitimate because everyone needs health care, then there was nothing to stop Congress from passing a mandate requiring everyone to purchase burial services. After all, just as everyone will need health care, everyone will need a burial service at some point. Verrilli insisted that this was different because burial costs are covered by family and don’t impose costs on the rest of society like health care. But Justice Stephen Breyer not only accepted the analogy, he suggested that under certain conditions a requirement of burial coverage would be constitutional, a claim that put Verrilli on the defensive. The lawyer was quick to point out that the government was “advancing a narrower” argument than Justice Breyer had proposed.

Of course, there was never much doubt that Breyer and the other liberal justices would uphold ObamaCare and its central provisions. The main unknowns are Chief Justice Roberts and the court’s swing vote, Justice Anthony Kennedy. While Roberts is a conservative, some on the left believe that he might be inclined to uphold the individual mandate. They cite his support for an expansive interpretation of a constitutional provision in the 2010 case of U.S. v. Comstock, which gave Congress power to continue the civil confinement of sex offenders even after their sentence had expired. The case upheld the confinement under the Constitution’s Necessary and Proper Clause, which the Obama administration now cites to support the individual mandate.

It’s not that simple, however. ObamaCare opponents point out that the court’s opinion in that case also included a limitation on the use of the Necessary and Proper clause. Given the added fact that Roberts has not yet offered his view of the proper boundaries federal power, it is premature at best to assume Roberts’ support for the mandate.

Yesterday’s hearings did not offer much clarity about where Roberts stands. Although he cautioned about the dangers of unlimited congressional power, he also seemed to endorse the government’s argument that the health care market is qualitatively different from other products because everyone is takes part in the use of health care.

Mixed messages also came from Justice Kennedy. On the one hand, Kennedy questioned ObamaCare opponents’ claim that those who declined to purchase health insurance where outside the health insurance market and thus not subject to regulation. The line was not so clear, he said. At the same time, he said early on in the hearing that the government faced a “heavy burden of justification” in its effort to prove that the mandate constituted a legitimate use of its power.

To be sure, justices’ comments during oral arguments aren’t infallible guides to their final decisions. But since they will almost certainly be the deciding votes, the skepticism that Roberts and Kennedy have shown toward the government’s defense of the individual mandate is already making the legislation’s supporters nervous. If that skepticism is a preview of their opinions, yesterday’s hearing may mark the beginning of the end for ObamaCare.

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