What Obama’s Lawyer Should Have Said to the Supreme Court

The law, lawyers, and the court.
March 29 2012 4:07 PM

How To Defend Obamacare

Solicitor General Donald Verrilli was grilled by the Supreme Court’s conservatives. Here is what he should have said.

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Q: Even if so, that law was passed under a different clause of the Constitution?

A: It’s hard to see why that matters. If a mandate is a permissible regulation of a well-regulated militia, it is an equally permissible regulation of interstate commerce. In the most important case ever decided on the scope of congressional power, the iconic 1819 case of McCulloch v. Maryland, Chief Justice John Marshall said that because a corporation-creating law was a valid under one clause of the Constitution (the territories clause), a corporation-creating law should be equally valid under other clauses. What is true of corporation-creating laws is also true of mandate laws.

Q: If 200 years ago, national security enabled government to mandate muskets, might national security today enable government to mandate vaccines?

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A: The next terrorist attack might very well be biological, Your Honor. And our best national defense is herd immunity, which does mean that we need a large percentage of Americans to have vaccines. They will be more likely to have such vaccines if they have insurance. And states cannot individually handle these issues well because viruses do not stop at state lines. They spill over. They create interstate externalities. McCulloch itself, I might add, was decided on national security grounds. In the wake of the war of 1812, Marshall explained how a national bank was useful in fighting wars and supporting armies.

Q: You said that no one in 1792 thought mandates were somehow especially troubling. Why not?

A: Because they understood simple logic—and we must do the same today. If government can tax me, and use the money to buy a musket/insurance policy with my name on it, and then give me the musket/insurance policy, then government can for the very same reason oblige me to procure the musket/insurance policy myself. I am being taxed/mandated by persons that I helped elect and that I can vote against. That is the main guarantee against abuse, as Chief Justice Marshall stressed in McCulloch and is obvious from the Constitution’s basic structure. And speaking of taxes, another easy way to handle this case is simply to uphold the mandate/penalty as a genuine revenue measure, enforced by the IRS and predicted by the Congressional Budget Office to improve the federal government’s fiscal situation by several billion—with a B—dollars a year.

Q: But isn’t liberty especially at risk with these kinds of federal mandates?

A:  Respectfully, no. Not at all. I emphatically deny Your Honor’s key proposition. It flunks a logic test, and a history test, and a structure test, and—well, just about every other legal test I can think of. If government can take my money and pay it to Detroit, there is no liberty difference than if government tells me directly to buy from Detroit. And if one thinks that money is speech such that a compelled payment is a First Amendment problem, then the 1792 Act was unconstitutional; and all state mandates of health insurance (Romneycare) and automobile insurance are unconstitutional. And a vast range of other state and federal laws would also be unconstitutional. Nothing in the Constitution or history or structure—or precedents, for that matter—provides suitable support for the “mandates are different” intuition, which cannot survive analytic scrutiny.  Such an opinion will not write—or if it does, it will not last.

Q: Meaning what?

A: Meaning, with the greatest of respect for an institution and individuals whom I hold dear, I have to teach the stuff that Your Honors write year in and year out to my students.  And if a judicial opinion simply fails tests of text, history, structure, and logic—and if it comes down by a 5-4 vote; and if the vote seems to track the party-alignment of appointing presidents; and if the four dissenters are emphatic that the majority’s arguments simply don’t wash; and if the vast majority of us who study constitutional law professionally, including most conservative scholars, agree that these arguments simply don’t wash; and if I already have to do a lot of work to explain Bush v. Gore, in context—well, what will I tell my students when they say to me, cynically, that “it’s all politics”?  What will I say, when they ask me (as I have already been asked by one former student):  “Just how many presidential elections are five conservative justices allowed to undo?”

Q: Are there any middle positions that might generate a broader consensus on the Court?

A: One possibility, perhaps, might build on various comments by Chief Justice Roberts and Justices Sotomayor, Kagan, Breyer, and others, at oral argument. The “mandate” should not be understood as free-floating requirement but simply as connected to the tax-penalty. In turn, the penalty can be upheld as a genuine revenue measure designed to bend down the cost curve. If the relevant statutory section needs in effect to be “reworded” to achieve this result, a judicial re-writing/re-reading of this section would be in keeping with various earlier cases, including the 2005 sentencing guidelines case of U.S. v. Booker and the 2009 Voting Rights Act case of NAMUNDO v. Holder.  Both cases, in turn, can be seen as rooted in principles of judicial restraint and charitable interpretation famously put forth by Justice Brandeis in his concurrence in the 1936 Ashwander v. TVA opinion. With all due respect, several other possible approaches are also sketched out in an essay I wrote last summer for the Yale Law Journal online.

And I’m sure that there are many other possible consensus positions that may emerge as Your Honors begin to deliberate among yourselves. Perhaps it would be too much to expect the kind of unanimity this court achieved in McCulloch, Marbury v. Madison, and Brown v. Board of Education—to name some of the most iconic cases. But an opinion that in some way genuinely crossed party lines would, with all due respect, be just what America now needs, and needs desperately, from the highest court in our land. 

Respectfully submitted,

Akhil Reed Amar

Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.

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