Some Final Thoughts on Oral Arguments in the Health Care Cases

I’ve had a chance to listen to the entirety of oral arguments in the health care cases now. As always, apologies in advance for typos.


There were some telling discussions during the Medicaid arguments. For example, we now have quite clear proof that Scalia will vote to invalidate the individual mandate. During an exchange with SG Verrilli, the SG suggested that “political constraint” (i.e. accountability to the voters) would serve as a check on an unreasonable decision to pull Medicaid funding to states. Scalia had this retort: “I would have thought there was a serious political . . . constraint on the individual mandate, too, but that didn’t work.” Read: “I’d hoped that the ACA wouldn’t pass.”

I was surprised at how spirited the conservatives were regarding the constitutionality of the Medicaid provisions. The key argument against them was that funding was coercive since a state refusing to comply with federal demands could have all of its Medicaid funding revoked. There was a lengthy argument between Justice Breyer and the conservatives regarding whether such a revocation could occur if it were “unreasonable” to do so. Here, I think Breyer’s expertise in administrative law showed up. He’s well-versed in what administrative agencies can do and the general requirement of reasonableness…a requirement that would cut against revoking funding in a coercive way. I reckon what surprised me about the conservatives’ attack on this provision of the ACA is that their arguments seemed reminiscent of what you’d expect a more liberal person to say. They argued that states don’t really have a choice about following federal requirements due to the context of the funding. This is a very environment or “external” type of argument that requires us to assume free-will takes a backseat to the context and outside factors. The kind of argument you don’t often hear conservatives making.


I also have some overall comments on how this whole series of arguments has been covered. I’ve been annoyed with both conservative and liberal thinkers for their smugness. The broccoli argument is deservedly mocked as is the burial one but the ultimate issue of inactivity / activity is not nearly as ‘insignificant’ as some argue. Nor is it appropriate to respond as the Republican National Committee has (see here) and misconstrue the quality of SG Verrilli’s arguments. Whether you agree or disagree with his position, he did rather well in total. I do agree that his ability to articulate a limiting principle was weak but that is no excuse for doctoring audio or criticizing him.

Here is the truth about what is going on. The supporters of the ACA see cases like Wickard v. Filburn and Gonzales v. Raich as a clear grant of power to regulate health care. They’re not entirely right as I see it. I’ve yet to find a case that really tackles the activity/inactivity distinction head on. Stone compares refusing to hire someone due to race (a violation of the Civil Rights Act of 1964) to refusing to enroll in health insurance. His initial point about the insignificance of calling conduct activity or inactivity is logical enough in the abstract. But of course, telling an employer not to discriminate based on race isn’t really comparable to telling an employer he must maintain a diverse workplace. It comes down to what was labeled “point-of-sale” during the arguments this week. When a person uses emergency room services, they’ve decided to enter commerce. Similarly, when a person applies for a job, the employer is forced to make a hiring decision. That’s the point in time where the “point of sale” occurs. I don’t mean to get too involved with this except to highlight that it’s harder than some suggest to draw perfect correlations between the individual mandate and other laws deemed valid under the Commerce Clause.

There are plenty of similar or close situations but I can find none that quite match what’s going on here. Indeed, the SG’s argument about a limiting principle relied on the uniqueness of the health care system. So, we can play with activity/inactivity distinctions—or lack thereof—all day long and this just goes to show that there isn’t an obvious answer to the constitutional question. If there were, we wouldn’t be able to so thoroughly debate the matter.

This difficulty I discuss also illustrates why the conservative opponents of the ACA have erred in assuming something unprecedented has occurred that violates the Commerce Clause. I have trouble seeing how telling someone they must buy health care is any more troublesome than telling a farmer he can’t grow a little extra wheat for feeding his family. See Wickard. I personally find both especially concerning because they exercise a heavy hand over what we do with our own lives. The justification for regulating both is a sort of utilitarian principle (the needs of the many must prevail over the desires of the individual) based in the empirically-observed aggregate effects that both growing wheat and refusing to buy health care have. Indeed, this utilitarian approach is not different in a philosophical sense from implementing traffic regulations or taxes. I’d prefer to drive as fast as I want and I’d prefer not to surrender my hard-earned money but I have to submit to regulation in both contexts for the good of society. The purest of libertarians take issue with even these regulations but most people will tolerate some utilitarian regulation if the risk of society harm is great or the infringement on the individual is minor. The ACA is a precarious position because many people find the individual infringement significant (economically and intangibly) while also finding the risk of harm (cost increases for others via market shifting) inconsequential. All of that is a long-winded way of saying that this regulation may well be unwanted but is not all that different in degree from what the Court has previously allowed.


I’d by no means bet the farm on these predictions. It’s really tough to figure out how Kennedy may go on this. I expect one of two possibilities. The first is that he votes to uphold the mandate but includes some strong language about how the holding is narrow, how Congress has no power to force people into commerce, and perhaps even some language that reads limitations into the ACA. Kennedy has not been shy from getting creative before. As I argued here, I think Kennedy had a lot to do with the new due process considerations announced in Turner v. Rogers…principles that neither party argued for in their briefs or during oral arguments. Similarly, his approach in cases like Boumediene suggests to me that he’s ready to come up with a creative solution that limits the ACA’s reach while upholding it.

Of course, the second option is that he just strikes down the mandate. And this wouldn’t surprise me. Kennedy seemed pretty skeptical about the level of intrusion on individual liberty during oral arguments—a virtue he has repeatedly show he’ll defend. When individual liberty is threatened, we usually see Kennedy standing behind it, which is what probably caused him to split from the other conservatives in the several Gitmo cases. I think that if Kennedy votes to strike down the individual mandate, the rest of the law including the Medicaid provisions will remain intact.

That’s my prediction on the likely outcome for whatever it’s worth. We’ll get to see how wrong or right I am by the end of June.

-Zachary Cloud


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