Dear Dahlia and Judge Posner,
Who Lost Obamacare? As I write on Wednesday afternoon, it should be obvious that this is a premature question. But that hasn’t stopped the debate over who should be blamed when/if the court strikes down the signature achievement of President Obama’s first term. Nominees for blame are:
1. The Solicitor General? Wrong suspect. Any serious reading of the briefs filed by the United States or the transcript of oral argument shows Solicitor General Donald Verrilli effectively established that the “mandate” was an essential part of regulating the interstate market in health care and health insurance. Early in the argument and often during its course, he put forth a set of limiting principles, noting repeatedly that the law regulates the payment method for services that people have no choice but to use. He wove the mandate into the fabric of reforms of the insurance market that no one disputes are within Congress’ constitutional competence.
Some of the criticisms of his argument border on laughable. One says he should have cited a 1792 law requiring shipowners to provide heath care for their crews. But, obviously, those shipowners were already engaged in interstate and foreign commerce. That simply doesn’t address the challengers argument that individuals required to have health insurance are not in commerce.
It’s worth noting that the solicitor general’s argument in the Arizona immigration case also came in for some criticism, but at the end of the day, the court decided in his favor in an opinion that closely tracked the very arguments Verrilli made to the court, as Andrew Pincus points out. The critics were proven wrong.
Performance criticism of the arguments in the health care case should be directed at some of the justices who made a mockery of what could have been a good civics lesson. As Adam Liptak notes in the New York Times, Verrilli was “interrupted mercilessly.” A careful study of the argument shows that Verrilli “was cut off 180 times or, on average, every 22 seconds. He was interrupted after speaking for 10 or fewer seconds more than 40 percent of the time.” Justice Scalia turned into a heckler. He interrupted Verrilli 26 times, his opponent Paul Clement only twice. No wonder the argument sounded rough at times. The key points, however, were made and understood.
2. The White House? We are getting warm. Obviously, the administration’s defense in the arena of public opinion has not been a success. In retrospect, as soon as the legal challenge was filed, the president himself should have publicly declared that the legal challenge brought by 25 state attorneys general, would, if successful, deprive every American of the right to buy health insurance if they have pre-existing medical conditions. He should have said that if these legal challenges prevailed, insurance companies could charge unaffordable premiums to families who have a child born with a birth defect. No one seems to know these popular provisions are on the chopping block. And almost no one knows they are free to choose to pay 2.5 percent instead of obtaining health insurance. Leaving the defense of the lawfulness of the reform to outside people (like me) was just inadequate. Only the president could have commanded the attention necessary to respond to the drumbeat of arguments that this law was unconstitutional.
3. Liberal Law Professors? Charles Lane asks in the Washington Post, “What, then, led the academics to misread this case?” I hate to sound naive, but I believe the answer is that they assumed the court would apply the law. The only challenge to the “mandate” is that it is outside the scope of the subject matter “commerce among the states.” Of course it is a regulation of interstate commerce. It is a regulation of the interstate markets in insurance and health care. The question should be as hard as “Who is buried in Grant’s Tomb?”
Does the mandate “run counter to the libertarian strain of the American tradition,” as Stephen Carter suggests in Lane’s story? If so, that should be irrelevant to the case actually before the court. The challengers decided against bringing a claim that the “mandate” violated substantive due process. And wisely so, because as the government reads the law, those who choose to pay the relatively modest penalty instead of having insurance are in compliance with the law. So it no more changes the relationship of citizen to government than Social Security does.
In any event, the question actually before the court is whether this regulation of commerce among the states is a regulation of commerce among the states. Academics—as well as respected conservative judges like Jeff Sutton, Lawrence Silberman, and J. Harvey Wilkinson—should not be faulted for finding this an easy question.
4. Five Justices? We have finally come to the true suspects. I don’t believe there is a legitimate justification for setting aside this product of enormous effort by the elected branches of government. And I don’t believe that will happen. But if it does, I believe it is clear who bears responsibility.
Richard, I know as a sitting federal judge you are restrained from commenting on pending cases. Shortly after ten am tomorrow, the health care cases will no longer be pending. To say that I will be interested in your reaction is an understatement.