Dear Dahlia and Judge Posner,
I am both pleased and apprehensive about once again commenting with you, Dahlia, on the final days of the Supreme Court’s term. The magnitude of the decisions yet to come—the Arizona immigration law, the Stolen Valor case, and, of course, health care—makes the idea of providing instant commentary somewhat daunting.
I’m also really pleased that this year we are being joined in this exchange by one of America’s most thoughtful public intellectuals, Judge Richard Posner of the United States Court of Appeals for the 7th Circuit. While a pleasure, it is also a bit intimidating to be blogging with the most often cited legal scholar of the 20th century. Judge, welcome.
Now, health care. My gut tells me the court will do something that will be a partial victory for both sides of the seemingly unbridgeable chasm between supporters and opponents of Obamacare.
Nothing could be more foolish, of course, than to hazard a public prediction about a case that will be resolved in a matter of days. But, here goes, anyway: A year ago I thought the “mandate” would be upheld, that Chief Justice John Roberts would write the opinion and that the decision would not be close. Maybe, 7-2.
After an oral argument that featured hostility, often bordering on heckling, directed at the government by more justices than two, that 7-2 notion seems less than astute. Five justices seemed to believe that the “individual mandate” would work a fundamental transformation in the relationship of citizen to government, and not in a good way. That’s not a favorable omen for the health care law, to put it mildly.
But will the court really strike down a law of this magnitude by a 5-4 margin? I have a hard time believing that will happen. The U.S. system for providing health care is a disaster for the economy at large and a tragedy for those who cannot see a doctor when they are sick. And this health care system is likely to get worse before it gets better, no matter what happens to Obamacare. If the court were to strike down this major reform effort, 40 years in the making, the court would own the resulting health care system for the next decade and beyond. It’s a slightly highbrow version of the universal rule: “You broke it, you bought it.”
Given the uncertain voice with which the Constitution speaks to the issues before the court, I can’t believe that five justices want to inherit that responsibility. But what would a middle way of resolving the case look like? Perhaps something like this: The court could opine that an “individual mandate” that compelled Americans to engage in commerce with a private party is unconstitutional. But, the court could say, this law does not actually force anyone to engage in commerce. As I noted last month in Washington Post, “Given the relatively modest payment required of those who choose not to maintain insurance, no one is being forced to buy a product they don’t want.”
The law’s challengers have responded that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. Here is where the court could give a theoretical victory to the challengers: By saying that if you did read the law that way—as its text seems to suggest—as making lawbreakers out of those who don’t acquire health insurance, it would be unconstitutional. But we don’t read it that way, the court could say. We read it as nothing more than an incentive to purchase coverage. No one is compelled to make a purchase from a private party because they can choose, instead, to pay a relatively modest penalty that never exceeds 2.5 percent. This makes the decision about whether or not to have insurance a genuine choice, not a compulsion.
At this point, a compromise-prone majority would have a couple of choices. The first would be to accept Solicitor General Donald Verrilli’s astute suggestion that the court avoid the constitutional issue by reading the law as giving a real choice to citizens: Have insurance or pay a modest penalty. Either way is compliance, not lawbreaking, the solicitor general says. Or the court could decide the text does not permit that reading but the Constitution compels it. The provision stating that everyone must obtain coverage or be a lawbreaker is unconstitutional, but the linked provision imposing modest financial incentives to have coverage is acceptable and can stand. (I advanced this thought at a recent session of the American Constitution Society and soon learned that I was not the first or only person to make this suggestion. See, for example the similar thoughts of Joey Fishkin and Jonathan Cohn.)
So a compulsory mandate would be unconstitutional but a financial incentive that leaves the choice to the individual would be OK. The practical effect would be to uphold all the operative provisions of the Affordable Care Act, while firmly planting a liberty flag that would limit future Congresses.
Such a result would not be easy to score. But in a democracy, when each side is seeking a total victory over the other, you can do a lot worse than come out with a muddled message.
There, I’m out on a limb. Come next week, the sawing can begin. I look forward to our conversation.
Walter
