Yesterday, I argued that based on their jurisprudence, the
Court will strike down the Obamacare mandate 5-4. Today, some further predictions about the
Court’s actions, based on the uniqueness of this particular case.
First, the uniqueness of health care. The Obama
Administration makes a very valuable point.
The Justices are concerned about one central question: if the federal government
can compel individuals to buy health insurance, is there anything they cannot
compel you to buy? The slightly humorous
hypothetical example was broccoli. Could
Congress pass a law mandating that I buy broccoli? Since nobody thinks they should be able to do
that, key to the Obama argument is that health insurance is unique.
More about this tomorrow, but the argument – correct, I think
– is that health insurance is unique, and thus uniquely subject to
Congressional legislation, because (a) everyone can get sick, (b) you never
know when you’ll get sick, and (c) the country recognizes an obligation to keep
people alive and well.
Sometimes libertarians make comparisons between health insurance
and auto insurance. But the huge difference
is that if your car dies, it’s just a car.
The Obama Administration rightly argues that we feel a weightier
obligation not to let people die; and health insurance (or some kind of safety
net) of some kind is central because you never know who’s going to get sick
next. Therefore, says the Obama
Administration, one needn’t worry that this Congressional intrusion in
individual liberty is limitless. We can
draw a very clear line between Congress’s right to compel you to buy health
insurance and a right to make you buy anything else.
That’s a good argument.
But I don’t think it will convince Kennedy. The reason is that health is such a universal
kind of thing. At first glance, it seems
that health is a limited good – Congress intervenes on this one thing, but on
nothing else. But then you realize that
almost everything in life involves health.
Broccoli moves from being a silly example (eating broccoli a meaningless
action that many people don’t want to take) to actually a very good example (broccoli
as arguably important to your health).
If Congress has the right to make sure you are taking care
of your health, Congress has the right to ask if you’re getting enough sleep,
exercising, engaging in risky behavior, consuming good or bad foods, minding
your posture, or causing yourself unnecessary stress. If Congress can compel you to watch out for
your health, Congress could argue that yoga, tai chi, and meditation are good
for your health, and issue a mandate for those.
The Court cannot intervene by disagreeing on the concrete judgment that
meditation is good for your health; if it agrees that everything to preserve health
is fair game for Congress, it has to allow these things.
The line is actually quite blurry, because health, precisely
because it’s important as outlined by the Obama Administration, ends up being a
limitless case. What makes health care
unique is precisely what makes it limitless.
Thus Kennedy (I authoritatively predict!) will vote against the
insurance mandate.
The last consideration of the Court’s decision is the issue
of “severability”: IF the Court strikes down the individual insurance mandate,
can the rest of the law stand? The Court
is said to have a “presumption of severability”: that is, unless proven
otherwise, the Court assumes that it can strike down one part of a law, and
leave everything else in place. But the
question is whether it’s leaving the rest in place if it strikes down this
point. That is, is the rest of the law
unchanged when this part gets struck down?
The answer, I think, is no, and from what I’ve read, even
Sotomayor (who is a utopianist, and thus will have no problem with the mandate,
but who does have some concern about maintaining her independence, so that she
does not look like a political hack who takes orders from the President who
named her to the Court) may agree. There
was universal agreement when the law was put into place that it doesn’t work
without the mandate. This was not just
one provision among many – comparable, for example, to the particular way the
law deals with abortion, which could stand or fall without changing the
rest. This was considered to be the
lynch pin, without which the “cost curve” bends in the wrong direction and the
whole law doesn’t work.
Certainly, for example, striking down the individual mandate
also kills the rules about preexisting conditions. Under the law as written, an insurer can’t deny
you insurance just because you have a preexisting condition. And that works because everyone has to get
insurance anyway (the mandate). But take
away the mandate, and the preexisting-condition rule destroys the whole
rationale of insurance. If you know that
you can get insurance after you already have a problem, then you only buy
insurance when you have a problem. Like
buying car insurance only when you have a repair to make. This part of Obamacare just totally doesn’t
work without the mandate.
So, okay, strip that out.
But what else needs to be stripped out?
The Obamacare legislation is famously long, so long that almost none of
the legislators who passed it were able to read through the whole thing. The Justices, including Sotomayor, were
extremely skeptical of their ability to go through and figure out piece by
piece, through hundreds upon hundreds of pages of technical legislation, what
is and what isn’t affected by the mandate.
That becomes extreme micromanagement by the Court: impracticable for
them, and inappropriate, since it really gets into properly legislative
activity.
Thus the Court has to say, if the mandate goes, the whole
law goes. Send the issue back to
Congress. Say, “figure out how this
works without a mandate, and pass something that works.” We’re not striking down the other pieces per
se, so you can try them again. But it’s
your job to figure out what works without the mandate and what doesn’t – as well
as what you need to do to replace it.
And the great ironic thing hanging over everyone’s head is
the obvious fact that Congress has changed.
Ordinarily, striking down the whole law wouldn’t be such a big
deal. If Congress actually wanted the
law that it passed, then the Court could strike down the whole thing based on
problematic piece, and Congress could quickly figure out the necessary
modifications and save what could be saved. The problem is that they didn’t
pass the law by legitimate means in the first place – didn’t have enough votes –
and then there was a huge public outcry against it, and a landslide Congressional
election almost entirely based on the unpopularity of the bill.
Surely, at least behind closed doors, the Justices have to
be acknowledging this: the only reason to make the severability argument is
because you know perfectly well that the present Congress DOESN’T want to
repass this bill. Hardly deference to
Congress, then, to say (a) that you’re going to strip their bill of its
original meaning, and then (b) that you’re doing it precisely so that the
current Congress can’t change what they want to change. It would be extreme interference in politics for
the Court to make a judgment of severability precisely to protect Congressional
legislation from Congressional elections.
