It is generally agreed that Tuesday's hearing before the Supreme Court was a disaster for ObamaCare. Solicitor General Donald B. Verrilli Jr. turned in a dreadful performance by nearly everyone's standard, including Mother Jones. He was stumbling, repetitive, talked in jargon most of the time, and had to be handed nearly every argument he could use by the four liberal justices.
It is appropriate to wonder why such a distinguished lawyer seemed to be so inept. Rand Simberg at PJ Media has suggestion: cocooning. Verrilli, like most people in the Administration and most Democrats in Congress, never talks to anyone who doesn't take it for granted that ObamaCare is constitutional and that any constitutional objection are just silly. For that reason, he was not prepared to offer the one single thing that a defense of the insurance mandate seems to desperately need: a limiting principle.
If you are going to say that Congress has the power to compel citizens to purchase health insurance then you have to go on to say one of two things. You might say that Congress has the power to do pretty much anything it wants so long as it's not explicitly prohibited in the Constitution. I suspect that that is what the Administration believes and what the four liberal Justices believe. Justice Breyer said the following, helping out General Verrilli:
I would have thought that your answer [to the question] can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn't the answer be: Yes, of course, they could.
And the same with the computers, or the same with the cell phones, if you're driving by the side of the highway and there is a federal emergency service, just as you say you have to buy certain mufflers for your car that don't hurt the environment, you could. I mean, see, doesn't it depend on the situation?
So Congress could require me to purchase burial insurance and a cell phone and cell phone plan designed by the Homeland Security Administration. I suppose they could legally require me to carry the cell phone when I go to take a whiz in case I fall and can't get up.
Is there any limit to the share of my paycheck or the hours in my day that Congress can confiscate? I don't think that Breyer thinks there is. That is certainly not how the founders viewed the Constitution. If it becomes the explicit pro-ObamaCare position, it is almost sure to lose on the Court and in the court of public opinion.
The other thing you could say is that there is a limiting principle, but that the mandate is on the safe side of that limit. It is not enough to say that health care is unique. That's like saying you only get married for the first time once. Health care will be unique until the next thing that Congress wants to require us to do. You need to show why health care is unique in a way that is consistent with the principle of limited government.
There is some chance that Chief Justice Roberts will vote with the liberal justices on the grounds of legislative deference. I have no good idea how to game that possibility. Barring that, the case will turn on whether Justice Kennedy decides to try to save the mandate. It is pretty clear that, if he does that, he will have to find some limiting principle that was not offered to him by General Verrilli or the liberal justices.
I don't know what Kennedy will do, but Avik Roy at Forbes makes a very plausible argument that the King of Swing will vote to strike down the mandate. Here is the oft quoted gem from Kennedy early in the day.
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.
That looks like a pretty solid argument against the mandate. On the other hand, Kennedy later said this:
I think it's true that if most questions in life are matters of degree, in the insurance and health care world…the young person who is uninsured is uniquely, proximately, very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in this case.
That looks like he is open to some kind of limiting principle that will save the mandate. Here is what Roy says:
Does Kennedy actually buy the argument that health care is constitutionally unique? The likely answer is no. If Kennedy was really concerned about this problem, it's much more likely that he would have brought it up early on, and raised it both with the Obama Administration's lawyer, Verrilli, and the mandate's opponents, represented by Paul Clement and Michael Carvin. He did not. But when it comes to the Supreme Court's swing vote, we can never be sure.
We're all reading judicial tea leaves here. This seer sees a five to four vote against the mandate. The stakes are rather high. Are the powers of Congress limited by a general sphere of individual liberty apart from the explicit prohibitions in the Constitution? Is there, in the words of the Court, some general right, however limited, to be left alone? No more fundamental question has faced the Court in my lifetime.