My (novel?) defense of Obamacare's constitutionality

As reader(s)™ of the Blog know well, I am kind of obsessed with the constitutional challenge to the individual purchase requirement of Obamacare. I think I have a pretty good handle on all the arguments, pro and con. But today, as I pondered the eminent Ronald Dworkin's take on the subject, an argument in favor of its constitutionality occurred to me—an argument that I haven't seen anyone else make. Here it is, in its most distilled form:

1) The individual purchase requirement says that everyone (with some inconsequential exceptions) must purchase health insurance or pay a penalty that will be withheld from any income tax refund that would otherwise be due.

2) By its very terms, then, this requirement applies only to people who have earned income in the previous tax year. A person who earns no income, or even some income but not enough to create federal income tax liability, can choose not to buy health insurance without penalty.

3) Everyone who earns income has participated in interstate commerce (as that term of art is broadly defined under long-established Supreme Court cases such as Wickard v. Fillburn).

4) Therefore, the individual purchase requirement is an exercise of Congress's power to regulate interstate commerce because it is merely a condition imposed upon citizens who choose to participate in interstate commerce. No one who refrains from participating in interstate commerce is affected by the legislation.

Here are some objections that occur to me, with my counter-arguments:

I want you to know that the challenge to the individual mandate is not frivolous

As Mr. Gillette recently pointed out, I "predicted" back in 2010 that the Supreme Court would uphold the individual mandate under the Necessary and Proper clause of the constitution. As with all my predictions, this was more or less pure speculation. I'm no expert on the constitution or the Supreme Court—I only pretend to be to make this blog more interesting and, more importantly, to annoy Mr. Gillette.

In re-reading my prediction post, however, I was struck by its discussion of an exchange between professors Jack Balkin (of the Balkinization blog) and Randy Barnett (the intellectual architect of the constitutional case against Obamacare). In short, Balkin theorizes that Barnett's arguments that the challenge to the individual mandate is not frivolous are not just arguments, but "performative utterances":

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.

Barnett surprisingly agreed that he and others were "trying to do exactly this."

At this point, it is beyond dispute that Barnett succeeded. No one can credibly claim that an argument that has produced a circuit split and reached the Supreme Court, where it received six scheduled hours of oral argument, is frivolous (at least not without resorting to pure cynicism).

Yet, incredibly, many respectable people do continue to insist that Barnett's arguments are beyond the pale (or, if you prefer, "garbage"). How can this be? I would suggest that Balkin's wisdom works in reverse. These accusations of frivolity are also "performative utterances"—an attempt to make the arguments frivolous by virtue of the fact that they, prominent legal journalists and scholars, are saying they are frivolous.

The two big differences are: (1) these people never admitted that they were "trying to do exactly this"; and (2) they failed.

SCOTUSblog overreacts just a tad

Tom Goldstein, the force behind the excellent SCOTUSblog, has a post severely criticizing the RNC for creating the ad embedded below, which uses the audio of Solicitor General Donald Verrilli's rather infamous stumbling at the beginning of his argument in defense of the individual mandate:

Goldstein's criticism is that the audio is "doctored" because it plays the sound of Donald Verrilli drinking ice water and saying "excuse me" twice, when in fact he only drank ice water and said "excuse me" once. According to Goldstein, this is pretty much as bad as inserting "someone with the same voice as Verrilli saying, 'Mr. Chief Justice, we believe the individual mandate should be upheld because we hate the Constitution?'"

As political ads go, this strikes me as pretty tame. It's perhaps a bad sign when I have to use one of my parenting catchphrases here: "Toughen up."

But Goldstein does make a pretty good point, I think, when he argues that this kind of manipulation for political purposes is why the Supreme Court resists every effort to allow oral arguments to be televised:

the Justices now have before them a perfect illustration of the gross distortion that can instantly be made of recordings of their proceedings.  What is to stop the same misleading stunt being pulled with the Justices’ own oral argument questions and comments?  Nothing at all.

Indeed, one needn't look far to find precisely that. For example, at one point Justice Scalia said that the young, healthy people who choose not to buy health insurance at current prices are "not stupid," the point being that they are making a rational calculation (perhaps right, perhaps wrong) that they would pay more in health insurance premiums than they are likely to pay for health services, so insurance is a bad deal for them. This is uncontroversial; it is the one of the main reasons that the law tries to force everyone to buy insurance: so that insurance companies can make profits while charging lower prices.

But in more than one article this statement has been twisted around to an assertion amounting to "if you are young and you pay for insurance, Scalia finds you 'stupid.'" Yikes.

Then there is this, from the New York Times:

But then came Justice Scalia’s now famous invocation of broccoli. “Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” Justice Samuel A. Alito Jr. chimed in, asking Solicitor General Donald B. Verrilli Jr. to answer “as succinctly as you possibly can.”

From this account, you would conclude that Justice Alito piled on and demanded a succinct answer to the famous and supposedly tendentious "broccoli question." But he absolutely did no such thing. Scalia raises the broccoli issue on page 13 of the transcript (and the 12-minute mark of the audio file):

Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

Mr. Verrilli gives his answer, and then there is some discussion. Broccoli is next mentioned on page 17, by Chief Justice Roberts:

That, it seems to me, is -- and it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either.

Shortly thereafter, the argument moves on to other variations on the theme.  Alito never asked a question during the broccoli part of the argument. Much later, Mr. Verrilli sets out what he (correctly, in my view) believes to be the fundamental question:

The question is, is there a limit to the authority that we're advocating here under the commerce power? And the answer is yes, because we are not advocating for a power that would allow Congress to compel purchases.

It is at this precise point, after Mr. Verrilli raises the topic of what limit there is to the commerce power, that Justice Alito speaks:

Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme? 

This is page 43 and the 45:30 mark of the audio file—a full 33 minuttes after Scalia had the gall to mention broccoli!

After all that, I urge you to go back and read the excerpt from the New York Times article and conclude for yourself whether the false impression it creates is more or less egregious than the false impression created by the RNC ad.

Anyhow, those are just a couple of examples. I've come across many other distortions from people who should know better, but I haven't the stomach to go back and find them.

"Whatever arguments the conservative justices have concocted to nullify an individual mandate, they can discover different ones to nullify a much more intrusive big-government system."

Says Jonathan Chait.

What do you think, Mr. Gillette? Are you that cynical?

The Importance of a Limiting Principle

During oral argument in the Obamacare case, one of the most heated issues was whether the individual mandate is consistent with any "limiting principle" of Congress's power under the Commerce Clause. Libertarian opponents of the mandate argue that there is no such limiting principle, while supporters of the law argue that there is.

A third group, however, seems to think that this talk of a limiting principle is nonsense. For example, Slate blogger Matthew Yglesias asks "What Is The Limiting Principle Of The Taxing Power?":

Congress could, if it wanted to, completely vitiate economic freedom purely through the tax code. You would impose a statutory rate of 100 percent and then create deductions for the stuff Congress wants you to buy—houses, health insurance, broccoli, whatever. . . If a political consensus exists that Congress wants to financially penalize non-purchase of broccoli, Congress will find a way. 

His argument is that the search for a limiting principle to the commerce power is pointless because Congress's other powers, such as the taxing power, have no limiting principle.  In other words, Congress can already do what it wants, so objections based on federalism and liberty are hollow.

This is incorrect. Congress could surely use its taxing power to accomplish all sorts of economic goals in the way that Yglesias suggests. But there is a clear structural limit to Congress's taxing power: the power to tax is limited to the power to take people's money away. The power to tax is not a power to directly regulate behavior at all. It is not a police power.

The commerce power, however, is a general police power to regulate any behavior with a substantial effect on interstate commerce. For example, Congress "regulates" the possession of controlled substances in interstate commerce by imprisoning people for possessing them. Thus, if Congress has the power under the commerce clause to mandate that people buy health insurance, it has the power to imprison them for failing to do so. (So far, it has chosen only to fine people.) The end result is that if there is no limiting principle on the commerce power—if the simple act of being alive is a commercial act—then Congress has the power to imprison anyone for anything. In other words, a general police power.

It is uncontroversial that the constitution does not grant Congress that kind of unfettered police power. Accordingly, the lack of a limiting principle works as a reductio ad absurdum, and the conclusion is that there must be a principled limit on the kinds of behavior that Congress can regulate under the Commerce Clause.

If it is so obvious that Obamacare is doomed, why do they bother with a third day of hearings?

I first started reading Slate when I was in law school.  I don't recall how I found out about it, but the feature that caught my attention was "Supreme Court Dispatches."  The dispatches were a weekly feature that would provide a report on what happened at the Supreme Court oral argument that  week.  Eventually, the dispatches stopped coming out every week and now only come out on well-publicized cases.

I thought about the Supreme Court Dispatches yesterday when the various media reports came out about how Obamacare is doomed based on yesterday's oral argument.  For example, CNN legal analyst Jeffrey Toobin says that the individual mandate is "doomed" based on how the oral argument went.  Ezra Klien of the Washington Post suggested that the apparently inevitable striking down of Obamacare might not have happened if Justice Kagen was still Solicitor General.

Predicting how the Supreme Court would rule based on oral argument was a frequent part of the Supreme Court Dispatches.  It was also frequently wrong.  For example, when reporting on Fitzgerald v. Barnstable School Committee et. al., Dahlia Lithwick predicts that the poor kindergartner who was sexually harassed on a school bus is going to lose.  Then the opinion came out and the student won in a unanimous opinion.  Ms. Lithwick's colleague, Emily Bazelon, wrote a piece predicting that the employee in CBOCS West, Inc., v. Humpries, would lose his retaliation claim because the Supreme Court's "right flank could use this case not only to block suits for retaliation like Humphries', but also to set the stage to make it ever harder to sue for discrimination under other laws."  The Supreme Court ruled 7-2 in the employee's favor.  Ms. Lithwick predicted that the "the most business-friendly Supreme Court in decades" would rule for big business in Wyeth v. Levine.  Instead, big business lost a 6-3 decision.  Ms. Lithwick also predicted that historians would use the case of Safford Unified School District #1 v. Redding as an example of  "not getting it" because the oral argument so badly for the student who was subjected to a strip search because she brought prescription-strength ibuprofen to school.  The student won a 8-1 decision.

The point of this post isn't that Ms. Lithwick, Mr. Toobin, and Ms. Bazelon are terrible at predicting what the Supreme Court will do (at least that is not the intended point).  Instead, my point is that it is silly to try to predict how a case will come out based on oral argument and people should ignore any predictions based on oral argument.  All oral argument does is demonstrate that some of the justices like to watch lawyers respond to tough questions (and make jokes).  Fans of Obamacare (the statute, not the word) should not despair that the law will be struck down and foes of Obamacare should not be too encouraged by the fact that the Solicitor General faced some tough questions.  I am biased, but I still think the best prediction on the outcome of the case was made almost two years ago.

Obamacare oral argument at the Supreme Court

UPDATE DAY 2:  The transcript of day 2 of the oral argument is here.  Justice Thomas did not speak.  Pages 41 and 87 of the transcript are where Justice Scalia makes jokes that make people laugh.  So, Justice Scalia doubled his laugh total from day 1.  On page 88, Justice Breyer gets into the act and makes a joke.  For my money, Justice Kagen steals the show with an amusing bit of self-deprecation on page 90. 


ORIGINAL POST:
The Supreme Court posted the transcript of the first day of the oral argument about whether Obamacare, to use a word Mr. Torvik likes, is constitutional.  The transcript is here. The Reader(s) of Thursday's post about Justice Thomas may be interested to know that Justice Thomas's silent streak remains alive and well.

Also alive and well is Justice Scalia's apparent campaign to get a laugh at every oral argument.  On pages 15-16 of the transcript, Justice Scalia tried to get a laugh by pointing out that federal court judges are stupid.  The justices were asking questions about what particular rule may, or may not, give them jurisdiction to hear the case.    Justice Scalia said,

what's going to happen is you're going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.

Note that the transcript does not contain the word "laughter" after Justice Scalia's observation.  From this, I take it that this joke went over like a lead balloon.  Perhaps the joke went over poorly because people don't know whether laughing about lower court judges is appropriate at the Supreme Court.

Justice Kennedy, possibly unhappy that the halls of the Supreme Court were not ringing with laughter, then made a joke and got a laugh on page 36 of the transcript.  Justice Ginsberg was asking Solicitor General Donald Verrilli about the government's interpretation of the Anti-Injunction Act when Justice Kennedy cut in,

JUSTICE GINSBURG: So -- so, you agree that we would not -- if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction.

GENERAL VERRILLI: There would be no reason to decide the jurisdictional issue. 

JUSTICE KENNEDY: Don't you want to know the answer?

(Laughter.) 

Justice Scalia, possibly not wishing to be outdone, then made another run at getting a laugh on page 40. The justices were asking the solicitor general whether the injuction at issue in a previous case was an injunction prohibiting the government from collecting a tax or if it was an injunction of the taxpayer preventing them from paying the tax. The exchange goes:

GENERAL VERRILLI: Well, in fairness, Justice Breyer, the United States did intervene in the -- in the Davis case and was a party, and so -- not as far as I'd like, I guess, is the answer.

JUSTICE SCALIA: Don't do it again, because I think that goes too far. I don't think that's restraining the collection of a tax. It's restraining the payment of a tax. (Laughter.)

GENERAL VERRILLI: Well - 

JUSTICE SCALIA: You don't want to let that bone go, right?

I think we can all agree that jokes like these make it pretty clear that Justices Kennedy and Scalia should curtail their plan to hit the road and become a comedy duo in the tradition of Rowan and Martin.  The jokes might also be support for the idea that lawyers are simply not very funny.

I like "Obamacare"

I call the health insurance reform legislation that President Obama spearheaded "Obamacare." I prefer this to any of the alternatives because it is simple and everyone knows what it means. The alternatives—such as "PPACA" (short for the official name of the legislation, which is "Patient Protection and Affordable Care Act") or "ACA" (short for "Affordable Care Act" which is short for PPACA)—are all some combination of unwieldy, opaque, pedantic and propagandizing.

Some people object that "Obamacare" is negative propaganda. I disagree, but I've still felt a little sheepish using it knowing that the pedants object. No more. For today I received an email from Jim Messina, the campaign manager for Obama's reelection campaign, entitled "I like Obamacare."

In it, Mr. Messina urges me to "Let everyone know: I like Obamacare."

I don't take many hard policy positions on this blog, and I'm not prepared to take such a firm stance at this time. (Plus, the natural follow-up questions if I were to take such a position would be, "Well, do you like like Obamacare?" and "Do you want to marry Obamacare?"—which would be very uncomfortable to answer.)

I am, however, prepared to say this: I like "Obamacare." The word. And since the Obama administration has now officially endorsed it, I think it is something everyone in this country, whether red-stater or blue, can get behind.

Most Democrats think the individual mandate is unconstitutional

Gallup has come out with some rather shocking results from a public opinion poll about the health insurance reform bill. Specifically, the poll finds that 72% of Americans—including an astonishing 56% of Democrats!—think that the individual mandate aspect of the bill is unconstitutional:

The obvious question is: what does the average American know about the constitutional arguments against the individual mandate? Answer: Absolutely nothing, huh, say it again! But it does show, I think, that this aspect of the bill is pretty unpopular.

Update on the Broccoli Objection

The other day I did a little post on the "Broccoli objection" to the individual mandate aspect of Obamacare.  I mistakenly -- or perhaps presciently -- wrote that the author of the Broccoli objection (Judge Vinson, during oral argument in the attorneys general case against the law in Florida) had already struck down the mandate as unconstitutional.  In fact he had not -- until today.

Thoughts on "The Broccoli Objection"

Over at Balkinization, Andrew Koppelman discusses what he calls "the Broccoli Objection" to the constitutionality of the individual mandate aspect of Obamacare.  The Broccoli Objections was first made by U.S. District Court Judge Roger Vinson, during the oral argument preceding his decision to strike down the individual mandate:

In the broadest sense every decision we make is economic. The decision to marry. The decision to keep a job or not has an economic effect. If [the federal government] decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?

Koppelman thinks this objection "rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one."  He quotes Frederick Schauer for the proposition that "any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of the danger case," and dismisses the Broccoli Objection because "Congress is never going to force you to eat your broccoli."  Q.E.D.

I think Koppelman misunderstands the logical structure of the Broccoli Objection.  It really is not a slippery slope argument -- it is a reductio ad absurdum.  Here is the structure of the objection, as I see it:


Premises
1)  The constitution imposes significant limits on the power of Congress;
2)  If the individual mandate is within Congress's power under the Commerce Clause, then, by the same principle, so would be the Broccoli mandate;   
3)  If the Broccoli mandate is constitutional, then there are no significant limits on Congress's power.


If all three premises are true, absurdity results because it would be both true and false that there are limits on Congress's power.  So not all three premises can be true.


So is the Broccoli Objection effective?  Not in my opinion.  I think premise 2, and probably premise 3, are actually false.  For example, you can craft a principle by which the individual mandate is within Congress's power (as necessary and proper to an otherwise clearly constitutional attempt to regulate the market for health insurance) and the Broccoli Mandate is not (because it is not necessary and proper to any otherwise constitutional exercise of Congressional power).   

But the objection is best defeated on its own terms -- not by transforming it into a more-easily dismissed slippery slope argument.

Update on challenges to individual mandate

The constitutional challenges to the "individual mandate" aspect of the new health insurance reform law (which we discussed below) scored a small victory today:  a district court judge in Virginia denied the government's motion to dismiss Virginia's lawsuit.  Although not a ruling on the merits, this is essentially a holding that the constitutional challenge is non-frivolous.  As the judge put it:

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — an individual’s decision not to participate in interstate commerce. Neither the US Supreme Court nor and federal circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product...

For reactions from the go-to scholars on each side of this issue, see here (Randy Barnett) and here (Jack Balkin).

Necessary and, in the end, proper

First, I thought I'd point out an interesting back-and-forth between Randy Barnett and Jack Balkin  about the constitutionality of the individual mandate.  In a post that I linked to in my last post, Barnett argued that DOJ's reliance on the tax power means that his attacks on the commerce clause justification must not be—as some have alleged—frivolous.  Prof. Balkin responds with the obvious point that trial lawyers always make every available argument, so DOJ's making the "tax" argument doesn't necessarily mean that the attack on the commerce clause justification has merit.  Then Balkin goes on to make a rather strange (and interesting) meta-argument that people like Barnett aren't just making assertions about the non-frivolity of their position, but are actually making their position non-frivolous by the act of making the argument:

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.

(emphasis mine).  Surprisingly, Barnett agrees!  Responding to a related point, he says, "Jack [Balkin] is right about this. I and others are trying to do exactly this."  Lots of interesting stuff in the exchange.

If we call it a fee, maybe no one will notice it is a tax.

When Governor Pawlenty said that an increase in the cigarette tax wasn't a tax but a fee, I wondered if anyone actually believed him. Given that President Obama's adminstration tried the same line, I assume that the fee/tax distinction is more plausible than I originally thought.

Certainly taxing someone for not doing something seems like an unprecedented use of the power to tax. My first thought was that it really isn't so different from the situation where the property taxes of childless homeowners are used to pay for schools that the homeowners won't use. However, the analogy breaks down when one considers that everyone pays property taxes and not everyone will be paying the health insurance tax.

In the Times' article you cite, Jack Balkin says that the tax argument is the "strongest argument for upholding" the individual mandate. This may be true as a matter of constitutional law theory. However, I doubt any judge will adopt that argument. Who wants to become known as the judge that said people could be taxed for doing nothing?

I think this mandate is really a fairly straightforward application of Wickard v. Filburn. You will recall that as the case about farmer who grew more wheat than he was allowed under restrictions on farm production in effect at the time. The farmer argued that since the extra wheat was used to feed his chickens, and thus not in interstate commerce, that Congress couldn't regulate his wheat production.

The Supreme Court, in an opinion by Robert Jackson, rejected that notion 8-0 (although perhaps Linda Greenhouse would find a way to make that a 5-4 decision). Essentially the Court said that the farmer’s decision to use his own wheat had an affect on the amount of wheat purchased in his area. The effect on wheat production locally indirectly effects the effect on interstate commerce because some wheat is in interstate commerce. Just as the farmer’s dropping out of the program affected interstate commerce, people refusing the to purchase health insurance affects interstate commerce. This may not be the "strongest" argument, but I bet it is the winning one.

Constitutionality of the "individual mandate" in the health insurance reform bill

The New York Times notes an interesting twist in the Obama administration's defense of the "individual mandate" aspect of the health insurance reform bill.  This is the provision that requires individuals either to purchase health insurance or pay a civil fine that will be collected by the IRS.  During the debate on the bill, some conservatives criticized this provision—hysterically, in my opinion—as a "dangerous expansion of the IRS's power and reach into the lives of virtually every American."  Some conservatives also argued that the individual mandate was not a proper tax since it taxed people for failing to do something (specifically, failing to buy health insurance).  The argument is that if the federal government can tax people for not doing something, then it can use the taxing power to regulate all aspects of human existence, and therefore the federal government has practically limitless power.  On the political (rather than constitutional) front, conservatives argued that the individual mandate was a breach of Obama's campaign promise not to raise taxes on those making less than $200,000 a year, since everyone was subject to the individual mandate, and the bill's subsidies for buying health insurance dropped off far below $200k.