Derek Thompson rounds up the tough individual mandate questions asked by the Justices today. He calls Justice Kennedy's worries, reproduced below, "perhaps the most important paragraph of the morning." What Kennedy said:
The reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.
Sarah Kliff decodes some legal jargon:
“Limiting principle” is a phrase that came up a lot in the Supreme Court Tuesday morning – 15 times, according to the transcript. It’s a legal concept you’ll probably hear a lot about in this afternoon’s analysis. When courts review a new application of Congress’s constitutional authority, they historically wanted to see the government articulate a clear limit to those powers – they look for, in legal jargon, a “limiting principle.”
Lyle Dennison puts Kennedy's comments under a microscope:
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
So does Orin Kerr:
Reading the tea leaves, it sounds like Justice Kennedy accepts the basic framework of the challengers that mandates are different and especially troubling. Instead of saying that mandates are therefore banned, however, Justice Kennedy would require the government to show some special circumstances justifying the mandate in each case. The answered question in this case is whether the special economics of the health care market justifies the mandate here.
Adam Serwer can't believe that Obamacare's defenders were so unprepared:
The months leading up to the arguments made it clear that the government would face this obvious question [about a limiting principle]. The law's defenders knew that they had to find a simple way of answering it so that its argument didn't leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything—(say, broccoli or health club memberships, both of which Scalia mentioned). [Solicitor General Donald B. Verrilli Jr.] was unable to do so concisely, leaving the Democratic appointees on the court to throw him life lines, all of which a flailing Verrilli failed to grasp.
Steve Kornacki points out that Verrilli's performance might not matter:
Keep in mind that it’s also possible that all of the justices made up their minds long before today’s arguments, meaning that Verrilli – if he really performed as terribly as firsthand observers are saying – might not have actually blown the case, no matter how badly he did.
Reaction in the press room, although mixed, seemed more negative than reaction elsewhere. My canvassing of legal experts found pretty mixed opinions on how the case will turn out. (Walter Dellinger, the Duke law professor who supports the law, pointed out that the plaintiffs effectively made it clear that the only way to create national health insurance would be through a single-payer system, an idea most conservatives detest.) Truth is, it's impossible to know what the justices are really thinking – and to what extent the justices are asking questions to satisfy their own doubts before going in the other direction.
Emily Ekins doubles down on the broccoli argument:
"If the government can do that, what else can it do?" asked Justice Antonin Scalia, referring to the individual mandate portion of the Patient Protection and Affordable Care Act. He then questioned whether Congress could also require individuals to buy vegetables, such as broccoli. The recent national Reason-Rupe poll of 1200 adults released yesterday shows 87 percent of Americans believe it is unconstitutional for Congress to mandate that you buy broccoli. Eight percent think Congress can constitutionally force you to buy vegetables.
Chait rips his hair out:
[Obamacare opponents] have managed to whip themselves into a frenzy by painting fantastical, concocted stories about the government forcing people to eat broccoli – as if they truly cannot imagine a legal or philosophical principle that would allow the government to enforce a health care mandate (that conservatives invented!) and not allow the government to force-feed broccoli to its population.
Ezra Klein claims that tax economists see "no economic difference between the individual mandate and the policies leading Republicans support to give large tax credits to Americans who purchase health-care insurance and deny them to those who don’t." James Joyner nods:
[T]here’s zero doubt that Congress has the power to accomplish the same goal in a way that’s only technically different under the taxation power. That is, they could simple raise everyone’s tax bill by the amount of the current penalty for being uninsured and issue them a 100 percent credit for years in which they were covered by insurance. But they wouldn’t have been able to get 60 votes in the Senate for that, so they settled on the mandate mechanism instead.
Paul Waldman points out that Americans want something for nothing:
85 percent of the public—in other words, basically everyone—thinks we all ought to get coverage no matter our pre-existing conditions. Even Republicans think that. But over half of the public doesn't think we ought to be required to get insurance, despite the fact that universal participation in the insurance pool is precisely the thing—and the only thing—that makes it possible to do away with exclusions for pre-existing conditions and get closer to a system that operates the way it should, i.e. that you have insurance, and that insurance pays for whatever medical needs you have, full stop.
Conor Friedersdorf concurs:
Put simply, Americans want all the freedom of a market-based health insurance system, all the security of a system heavily regulated by government, and the option to put off purchasing this guaranteed insurance until it's needed. And all for no more than they're paying now. It seems whoever is in power will be doomed to disappoint.
Yuval Levin argues that the importance of the mandate to Obamacare isn't a defense of it:
Acknowledging that the system you have designed can’t function economically unless everyone is compelled to participate in it should make you wonder about the wisdom of that system, rather than making you defend the proposition that Congress has the authority to compel everyone to buy what you want them to buy. And the attempt to justify the mandate as an independent solution to a problem with American health care that existed before the enactment of Obamacare is simply not valid.
Ed Kilgore sighs:
Perhaps tomorrow’s hearing, on the “severalbility” of the mandate from the rest of the ACA, and on the constitutionality of its Medicaid provisions, will generate some new hints, but probably not. We’re in for a long wait—probably until June or July—with a truly momentous decision in very serious doubt, and the ever-erratic Kennedy in charge. That’s just great.
Ben Jacobs looks ahead:
The Court on Wednesday will focus on severability, or how much of the law could remain on the books if it decides the mandate is unconstitutional. Many observers have assumed that this argument would be relatively academic, since the mandate appeared to be in good shape. But after the government’s apparent failure to win a clear fifth vote on Tuesday, tomorrow’s arguments could help determine whether all 2,000 pages of the Affordable Care Act are thrown out.
Today's audio and transcript are here.
(Photo: A anti-Obama health care glove is worn in front of the U.S. Supreme Court building, on March 27, 2012 in Washington, DC. Today is the second of three days the high court has set aside to hear six hours of arguments over the constitutionality of President Barack Obama's Patient Protection and Affordable Care Act. By Mark Wilson/Getty Images)