Reflections on the Supreme Court Argument on the Constitutionality of the Health Insurance Mandate

[1]On March 27, 2012, the Supreme Court heard arguments on the constitutionality of the health insurance mandate in the Affordable Care Act[2]—the requirement that those who can afford it, maintain minimum health insurance coverage or pay a “shared responsibility” penalty tax.[3] Immediately upon the arguments’ conclusion, many pundits, pointing to questions and comments from the more conservative Justices during the Solicitor General’s argument in defense of the mandate, predicted that the mandate and even the rest of the Act would be invalidated.

This speculation is not only premature and misleading to the public but unfair to the Justices. They should be free to ask the hard questions at oral argument on issues that trouble them without having their remarks treated as decisions they may not yet have reached. Their views may evolve through discussion with their colleagues as well as from the discipline and constraints of writing reasoned opinions to accompany their decisions. Indeed, some remarks by Chief Justice Roberts and Justice Kennedy during the arguments of the lawyers challenging the mandate have been read to suggest that, at least, these Justices have not yet made up their minds.[4]

With this in mind, this essay examines the questions and comments made by the Chief Justice and Justices Kennedy, Scalia and Alito[5] solely as reflections of the issues most troubling to them: whether the mandate intrudes on individual liberty in ways that exceed Congress’ commerce powers and whether upholding the mandate would undermine constitutional limits on Congress’ commerce powers.

 In the discussion that follows, I try to show why these Justices should resolve their doubts on these two related issues with a resounding “no.” The Supreme Court long ago rejected the invocation of such “liberty” concerns to challenge economic legislation, so long as the legislation meets the very deferential “rational basis” test. The mandate easily satisfies that test. These Justices should not restore the bygone pre-1937 era in which the Court invoked the “liberty” prong of the Due Process Clause to invalidate economic legislation enacted by democratically-elected legislatures by disguising that long-rejected approach as a limit on Congress’ commerce powers.

In any event, the mandate does not offend liberty concerns as the Court has defined “liberty.” To the contrary, as argued by Solicitor General Verrilli,[6] the mandate is essential to effectuation of provisions of the Affordable Care Act that are a charter of liberty for millions of Americans who until now have been denied access to affordable health insurance to finance their health care needs.

The mandate also falls well within established limits imposed by the Court’s commerce clause jurisprudence. The mandate’s critical role in effectuating indisputably constitutional provisions of the Affordable Care Act that Americans overwhelmingly desire and the unique problems of the health insurance and health care markets that those provisions address should dispel the Justices’ fears that upholding the mandate would undermine limits on the commerce power and lead to the chimerical hypothetical results posited during the argument.

The Health Care Mandate and Commerce Clause Jurisprudence

The place to begin is with the most relevant commerce clause jurisprudence that includes cases going back to the late 1930s and early 1940s and the most recent gloss put on that jurisprudence by conservative Justices including the late Chief Justice Rehnquist and Justices Kennedy and Scalia in cases decided in the decade between 1995 and 2005. Those cases establish that under its commerce power, Congress may regulate economic activities that have a substantial effect on interstate commerce and that even noneconomic purely local activities may be regulated if the failure to regulate them would undercut a larger regulatory scheme that is within Congress’ power to regulate commerce.[7] As Justice Scalia noted in his concurrence in Gonzales v. Raich, this latter standard is predicated on the Necessary and Proper Clause which “empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation.”[8] The mandate meets all of these tests.

As the government argues, virtually everyone will consume health care services at some point in their lives and many are currently doing so. Most people pay for that care with health insurance. The mandate, by requiring all persons who can afford it to maintain minimum health insurance coverage beginning in 2014, thus regulates quintessential economic activity: how and when individuals will pay for the health care they will almost certainly consume. The decision as to when and how to pay for health care has a substantial effect on interstate commerce in both health care and health insurance: Without insurance, many people are unable to pay for the unpredictable and frequently catastrophic costs of health care. Under state and federal laws and our social and moral norms, however, hospitals may not refuse to provide them with emergency care. The cost of such uncompensated care for uninsured persons is passed on by the hospitals to the vast majority of people who are covered by insurance and is reflected in the premiums they pay.

Congress found that in 2008 such costs of uncompensated care for the uninsured amounted to over $43 billion and added an average of $1000 annually to health insurance premiums paid by others. Congress also found that health care costs were part of the cause for 62% of all bankruptcies in 2008. These bankruptcies affect not only the bankrupt persons but their families, health care providers and other creditors, and the wider community. By requiring persons who can afford to do so, to maintain health insurance coverage, the mandate ameliorates these very substantial effects on interstate commerce in health care and health insurance.[9]

The mandate also regulates activities that if left unregulated would severely undercut the larger scheme of undisputedly constitutional health insurance regulation reflected in the Affordable Care Act. A main goal of the Act is to make health insurance more accessible to people with preexisting health conditions who are either denied coverage or charged exorbitant premiums for it. The Act’s guaranteed issue and community rating provisions prohibit insurers from denying coverage to persons with preexisting medical conditions and from discriminating in the premiums they are charged. Experience has shown that in the absence of a mandate, such provisions will be an incentive to healthy persons to postpone paying for insurance until they get sick and the insurance pools will be reduced to mostly sick people (a problem referred to as “adverse selection”)  As a result, the cost of health insurance will skyrocket, rendering health insurance unaffordable or even unavailable.[10] No one questions that the mandate is essential to prevent this from occurring and that its invalidation would severely undercut the key and lawful goals of the Act.

Indeed, during subsequent arguments concerning whether any portions of the Act would be severable if the mandate were invalidated, the states and other parties challenging the mandate maintained that the mandate is so central to the Act that not only the guaranteed issue and community rating provisions would have to fall, but the entire

Act would be reduced to a “hollow shell” and accordingly should fall as well.[11] As Justice Scalia summed up the same point, the mandate and the guaranteed issue and community rating provisions that are unworkable without the mandate are the “heart” of the Act. He therefore suggested that, if the mandate were invalidated, it might be better to throw the whole Act out, rather than force the Court to examine the entire 2700 pages of the Act to determine which provisions might survive without the heart.[12]

On the face of it, therefore, the mandate would appear to come within all prior limits imposed on Congress’ commerce powers. Indeed this seems so obvious that even many prominent conservative legal luminaries, such as Charles Fried, President Reagan’s Solicitor General, conservative appellate Judges Laurence Silberman, Jeffrey Sutton and J. Harvie Wilkinson III, and conservative Columbia Law School constitutional law scholar, Henry Paul Monaghan, have concluded that the mandate is constitutional. [13] Yet, the questioning and comments during argument indicated continuing and serious concerns by the conservative Justices[14] about the mandate’s constitutionality. It is to those concerns that I now turn.

The Concerns Expressed by the Conservative Justices

Those concerns appear to fall into two categories: (1) whether the mandate is an unprecedented invasion of liberty from government compulsion, forcing people into commerce they do not choose to enter; and (2) whether if the mandate were upheld, there would be any principled limits to the things Americans could be forced to buy–including broccoli, cell phones, exercise club memberships, and automobiles—and therefore, whether the mandate violates the Constitution’s vision of a federal government of enumerated and limited powers.

1. The Claimed Intrusion on Liberty and the Compulsion To Enter Commerce

A principal theme of the questioning was whether the mandate infringed the liberty of persons required to maintain coverage by forcing them to enter commerce and buy insurance they do not wish to purchase.[15]

As the Solicitor General explained, the mandate does not force anyone into commerce because virtually everyone will consume health care services at some point in their lives and many are already doing so. All the mandate does is regulate how and when they will pay for the costs of care that is unquestionably part of interstate commerce. Even the states challenging the law concede that Congress could require people to buy coverage at the point they consume health care services, so the only issue is timing. But requiring the purchase of insurance at the point of health care consumption would create the very incentives to healthy persons to postpone buying insurance until they became sick that, in the absence of the mandate, make the guaranteed issue and community rating provisions unworkable. Further, one could hardly imagine a more coercive circumstance for the patient with an emergency medical problem than being required to purchase insurance at the point when emergency care is needed—a true “money or your life” situation.

In any event, it surely is inappropriate for the Supreme Court to be second guessing Congress on this timing issue, a question of policy and means that is outside the Court’s competence and authority. Indeed, since United States v. Carolene Products, Congress’ resolution of such economic issues has been given a strong presumption of constitutionality and is upheld where there is any “rational basis” for its legislative judgment.[16] Congress’ judgment here plainly satisfies that test.

Justice Kennedy seemed particularly concerned about possible intrusions on citizens’ liberty interests, suggesting that the mandate “changes the relation of the individual to the government …in this unique way” and asked whether that does that not impose “ a heavy burden [on the government] to show authorization under the Constitution.”[17] As Adam Liptak noted in the New York Times,[18] both sides tried to address Justice Kennedy’s liberty concerns at the end of the final day of argument. [19]

In applying his conception of liberty to the health insurance mandate, one hopes Justice Kennedy will consider the definitions of liberty previously embraced by the Court.

In 1896, in rejecting assertions that a Massachusetts law compelling vaccination interfered with liberty, the Court opined:

[T]he liberty secured by the Constitution… does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good…. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.[20]

Similarly in 1937, dismissing claims that a state minimum wage law interfered with the liberty of those compelled to pay the minimum, the Court explained:

[T]he Constitution does not recognize an absolute and uncontrollable liberty… [T]he liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to … regulation which is reasonable in relation to its subject and is adopted in the interests of the community… [21]

Only last term, in Brown v. Plata,[22] Justice Kennedy wrote eloquently of the importance of adequate medical care to human dignity. He there found that need so compelling that he concluded that overcrowded prison conditions that caused the denial of such care to prisoners violated the Eighth Amendment’s prohibition on cruel and unusual punishments and justified an order that could result in the release of thousands of prisoners.

Here, invalidating the mandate to give individuals the liberty to choose to go without health care insurance would harm millions of Americans who until now have been forced to bear the uncompensated health care costs of the uninsured.  Invalidation of the mandate also would give healthy persons an incentive to postpone buying coverage until they get sick, and thereby undercut the provisions of the Act that will now enable persons with medical conditions to obtain health insurance they have been denied or could not afford. The liberty sought by those challenging the mandate would thus severely harm millions of Americans by depriving them of access to affordable health insurance to pay for health care when they need it. That would be a severe assault on their liberty and human dignity.[23]

Nor does the mandate change the relationship between the government and individuals, as Justice Kennedy worried, or shift the burden consistently imposed by the Court on those seeking to overcome the strong presumption of constitutionality for Congress’ economic legislation.[24] Notably, as Harvard Law School Professor Einer Elhauge points out, health insurance mandates go back to our earliest Congresses. In 1790, the first Congress, which included 20 Framers, enacted a law requiring employers of seamen to buy the seamen medical coverage and President George Washington signed that law; in 1798, Congress, which included five Framers, revised this law to require the employers to purchase coverage for prescriptions but not hospital stays, but then required the seamen to purchase the hospital insurance for themselves. These laws were signed by President John Adams. In 1792, Congress, which then included 17 Framers, also enacted a law requiring able bodied men to buy firearms. This law was also signed by President Washington.[25]

Americans are subjected to all sorts of laws that are far more coercive than the mandate. They can be drafted into the military to risk their lives in wars they may oppose. Younger people pay Social Security taxes to subsidize senior citizens. People must pay taxes for highways, education, and other public goods and services, that they will never use themselves. They pay for cars that have emission and safety devices required by federal regulation. In fact, the Court has upheld economic and social legislation enacted under the commerce clause far more intrusive and coercive than the health insurance mandate.

The Court upheld the federal law that requires most businesses to pay minimum wages to their employees, with severe penalties if they refuse to do so.[26] It makes no sense to argue that, because businesses can avoid the obligation to pay the mandatory minimum wage by going out of business, this law is less intrusive and coercive than the mandate, which can be avoided by choosing to pay the relatively modest shared responsibility tax penalty. [27] In Wickard v. Filburn,[28] the Court upheld a federal law aimed at supporting the price of wheat sold in interstate commerce that penalized a farmer for exceeding the quota on wheat grown purely for internal consumption by the farmer’s animals because such wheat although not sold in interstate commerce affected the price of wheat that was. As Justice Jackson recognized the federal law “force[d] some farmers into the market to buy what they could provide for themselves.”[29] Those challenging the mandate argue that unlike the persons subject to the health insurance mandate, farmer Filburn had the option of not farming or feeding his animals different grains than wheat. But again, they never explain why those options are less coercive than the relatively modest shared-responsibility penalty tax that could be paid as an alternative to complying with the insurance mandate.

Again, in Gonzales v. Raich[30] in a decision joined by both Justices Kennedy and Scalia, the Court upheld a federal law banning the possession or consumption of marijuana, as applied to consumers of home grown or locally grown marijuana used for medical purposes and prescribed by a physician in compliance with California law. A physician testified that one of the plaintiff-patients might even die if she was unable to use the marijuana and that for both plaintiffs marijuana was the only effective treatment for their conditions.[31] Surely, that law is far more coercive and intrusive on the lives and liberty of the plaintiffs than the mandate.

Notably, the Court in Raich did not consider these coercive and intrusive effects as relevant to its commerce clause decision, but instead remanded the case for consideration of whether the law infringed the plaintiffs’ substantive Fifth Amendment due process rights.[32] On remand, those claims were rejected by the lower court.[33] Notably, in the instant case, the challengers to the mandate abandoned their original claim, rejected by the district court,[34] that the mandate violated their “liberty” interests under the Fifth Amendment due process clause—a recognition of the fact that it had no chance of success in a case involving economic regulation.

Justice Scalia suggested the mandate might invade liberty interests guaranteed by the Tenth Amendment. Solicitor General Verrilli first responded by observing that the mandate operated directly on individuals and therefore did not come within those cases holding that the Tenth Amendment barred Congress from “commandeering” state administrative or legislative processes and that Congress was not invading the state’s sphere, given the already substantial federal regulation of health care and health insurance.[35] Justice Scalia did not question this point but countered that “the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people.” “[T]he argument here,” he continued, “is that the people were left to decide whether they want to buy insurance or not.”[36] But there is nothing in the Tenth Amendment or anywhere else in the Constitution to support that argument. Solicitor General Verrilli was well justified in expressing the fear that accepting such an argument would amount to an invocation of the ghost of Lochner[37] and no longer permissible applications of substantive due process notions to limit economic regulation of interstate commerce.

Chief Justice Roberts immediately interjected that Lochner had no application here because Lochner involved limits on state regulation while the issue here involves limits on the commerce power imposed by Federalism. But this is not a valid distinction. There is no real Federalism issue here because, as noted, states are incapable of addressing the health care and health insurance issues that the mandate and its related Affordable Care Act provisions address; this is a quintessentially federal problem that transcends state lines and can only be resolved by federal legislation.[38] Application of the Tenth Amendment to invalidate the mandate would merely be a disguise for using long-rejected substantive due process arguments as a device for invalidating economic legislation enacted under the Commerce Clause. That would conflict with established commerce clause jurisprudence.[39]  It could inspire efforts to overturn other claimed interferences with individual “liberty”—such as public accommodation, minimum wage, maximum hours, child labor, workplace safety, and environmental laws—that also require individuals to make economic choices they would prefer not to make, but long recognized as within Congress’ commerce power.[40]

 Moreover, invoking the Tenth Amendment begs the question of whether the mandate is within the powers given to Congress by the Commerce and Necessary and Proper Clauses. By every test laid down by the Court, the mandate is plainly within Congress’ enumerated powers and therefore the Tenth Amendment is no bar to its enforcement.  

Finally, in considering the purported intrusiveness or coerciveness of the mandate one hopes the conservative Justices recognize that only a relatively small number of people are likely to be affected by the mandate and that Congress has taken steps to make it unlikely that anyone would be compelled to comply with the mandate unless they can afford to do so.

First, the vast majority of Americans will not be compelled to buy health insurance because they are already covered by government or private insurance that satisfies the requirements of the minimum coverage required by the Affordable Care Act. Persons covered by Medicare and Medicaid—including an additional 16 million persons who will benefit from the expansion of Medicaid—will not need to buy coverage. Most other persons already have coverage from employers that satisfy the minimum coverage requirements. [41]

Second, the mandate will affect only those who can afford to buy the required insurance. Persons whose incomes are below the amount required for the filing of a tax return are not subject to the mandate[42] and anyone that has income at or below 133% of the poverty level will be covered by Medicaid.[43] The law also provides a hardship exemption.[44] As for the rest of the public, the law will give subsidies to families with incomes up to four times the poverty level—for example, a family of four with an income of up to $90,000—to help them purchase coverage on health care exchanges where individuals will pool their buying power to get the same advantages on premiums as large employers now get.[45] Meanwhile no one will be required to spend more than 8% of their income to meet the mandatory requirement.[46] Thus, Congress has made every effort to alleviate any burdens the mandate might impose on those who might otherwise find it difficult to afford.

In sum, the choice given by the mandate to maintain coverage or pay a shared responsibility penalty tax is not an intrusion on “liberty” and does not affect Congress’ power to enact it under its powers to regulate commerce and to enact legislation that is “Necessary and Proper to carry into execution its enumerated powers” under the Commerce Clause.[47]

2. The Concern About the Absence of “Principled” Limits

Justices Scalia, Chief Justice Roberts and Justice Alito repeatedly invoked a concern that if the mandate were upheld and required people to maintain health insurance coverage, there would be no limits on Congress’ power to require people to buy other products such as broccoli, cell phones to deal with medical emergencies, exercise club memberships, burial insurance or automobiles.[48] The Solicitor General—with some help from Justice Ginsburg—repeatedly emphasized the unique features of the health care and health insurance markets that distinguished them from all other markets and made the mandate necessary.

None of these other markets entail anything resembling the legal and ethical obligations to provide uncompensated emergency health care, the cost of which is then passed on through increased premiums to the vast majority of persons who do have insurance.[49] Moreover, the cost of health insurance depends on the mix of healthy and sick people covered by insurance policies. This gives insurers an incentive to “cherry pick” customers through underwriting practices that favor healthy people and deny coverage to sick people or charge them higher premiums. No other market has any similar feature that so affects consumers’ access to, and their ability to afford, their product. The Act’s guaranteed issue and community rating provisions address this unique market defect and as described above the mandate is indisputably essential to make these provisions workable.[50]

Yet, Justice Scalia and Chief Justice Roberts continued to question this fundamental and material distinction throughout the argument. At one point Justice Scalia suggested that such distinctions were not “principled” and no different than saying “the person subject to [the mandate] has blue eyes.”[51]

Just why these Justices seem to question these distinctions is unclear. They seem to suggest that even material factual distinctions between different cases require judgments that courts are incapable of making in a principled way. But that would be an odd conclusion about a judicial system founded upon, and steeped in, the common law tradition and in which such judgments are constantly made in the routine of judicial business. Judgment, as Alexander Hamilton emphasized in Federalist 78, is the defining characteristic of the judicial branch.

Further, these Justices have not previously been so fastidious about addressing the potential applicability of their rulings to other circumstances: In Bush v. Gore, for example, the Court avoided consideration of the potentially troubling consequences for election administration that might flow from its unprecedented decision to apply the equal protection clause to bar Florida’s vote recount in the 2000 Presidential election. It did so by limiting its holding “to the present circumstances.”[52] Only three months ago, the Court held that the free exercise and establishment clauses of the First Amendment prevented application of federal employment discrimination laws to a religious institution’s discharge of a teacher of primarily secular subjects. In so doing, the Court dismissed concerns about application of this holding to other areas of employee protection, labeling them a “parade of horribles” and simply “expressing no view” on the hypothetical situations raised.[53] Yet, those hypotheticals were hardly as far-fetched as those posited here.

Surely, it would make no sense to invalidate an otherwise constitutionally well-justified health insurance mandate on the basis of far-fetched hypotheticals and to assume that members of Congress are so foolish that they would enact such laws or that their constituents would put up with it. One hopes the Justices will allay the concerns raised by their hypotheticals by recalling Chief Justice Marshall’s words in the seminal commerce clause case of Gibbons v. Ogden.[54] After emphasizing the great breadth of the commerce power, he observed: “The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are…the sole restraints on which they have relied[] to secure them from its abuse.”

Reductio ad absurdum arguments like the far-fetched hypotheticals bandied about at the argument and in respondents’ briefs not only produce absurdities, but they frequently rest on fallacious logic. That is the case here.

As Justice Scalia noted in Raich, laws that in isolation may not be within Congress’ enumerated powers, may nevertheless be justified under the Necessary and Proper clause if they are necessary to the effectuation of a larger regulatory scheme that is within Congress’ enumerated powers.[55] As discussed, the mandate easily passes that test. Yet, the conservative Justices compared both the mandate and the hypothetical products in isolation from any larger regulatory scheme. Whether an obligation to buy the hypothetical products would pass the same test that the mandate does is never examined.

In fact, the comparisons with other products are made without any context. Just what are the hypothesized national emergencies in broccoli, cell phone, exercise clubs, burial insurance or automobile markets that are comparable to more than 40 million uninsured Americans lacking the resources and access to health insurance to pay for the health care they need? What are the market defects in those hypothetical markets comparable to the cost-shifting/ free rider effects, underwriting practices discriminating against the sick, and risks of adverse selection that even conservative economists and politicians recognize require the mandate as an essential part of any free-market approach to attaining universal coverage? These and other market, moral and political considerations must be posited before one could even begin to consider whether upholding the mandate would require upholding hypothetical legislation in other markets posited by the fecund imaginations of those challenging the mandate’s constitutionality.

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In sum, the concerns expressed by the conservative Justices at the argument should not, on reflection, affect their decision. The mandate would neither invade any liberty interest protected by the Constitution nor undermine limits on Congress’ commerce powers. It is fully consistent with the Court’s Commerce Clause cases. That should suffice.

[1] The author is Senior Policy Advisor at the Brennan Center for Justice and Adjunct Professor in the Political Science Department at Columbia University where he teaches an undergraduate seminar in constitutional law. I gratefully acknowledge colleagues Fritz Schwarz and John Kowal, who read earlier drafts and made helpful suggestions, and Katriana Roh who provided helpful research assistance.

[2] Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (hereinafter the “Affordable Care Act”).

[3] 26 U.S.C.A. § 5000A.

[4] See Tr. at 82–83, 93 (Chief Justice Roberts), Tr. at 104 (Justice Kennedy). Unless otherwise specified, references to “Tr.” are to the official transcript of the March 27 argument, available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/11–398-Tuesday.pdf. On the significance of these Justices’ comments, see, e.g., the thoughtful discussion in Linda Greenhouse, ‘Embarrass the Future’?, N.Y. Times Opinionator (Apr. 4, 2012, 8:30 PM), http://opinionator.blogs.nytimes.com/2012/04/04/embarrass-the-future/.

[5] Justice Thomas was silent.

[6] Tr. at 108–09.

[7] See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1(1937); United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111, 128–29 (1942); United States v. Lopez, 514 U.S. 549, 559–61 (1995) and Gonzales v. Raich, 545 U.S. 1, 34–37 (Scalia, J. concurring).

[8] 545 U.S. at 39 (Scalia, J. concurring)

[9] 42 U.S.C.A. §18091(a)(2).

[10] 42 U.S.C.A. §18091(a (2)(J).

[11] Transcript of Argument of the morning of March 28, 2012 at 15–16, available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/11–393.pdf.

[12] Id. at 35, 38, 45.

[13] Ezra Klein, Reagans’ solicitor general: ‘Health care is interstate commerce. Is this a regulation of it? Yes. End of story.’ Interview with Charles Fried, Wash. Post (Mar. 28, 2012, 1:09 PM), http://www.washingtonpost.com/blogs/ezra-klein/post/reagans-solicitor-general-health-care-is-interstate-commerce-is-this-a-regulation-of-it-yes-end-of-story/2011/08/25/gIQAmaQigS_blog.html; The Constitutionality of the Affordable Care Act: Hearing Before the S. Comm. on the Judiciary, 112th Cong. 1–5 (2011) (statement of Charles Fried, Beneficial Prof. of Law, Harvard Law School); Seven Sky v. Holder, 661 F. 3d 1 (D.C. Cir. 2011) (Silberman, J.), petition for cert. pending No. 11–679 (filed Nov. 30, 2011) and  Thomas More Society v. Dep’t of Health and Human Services, 651 F.3 529, 554–566 (6th Cir. 2011) (Sutton, J. concurring) petition for cert. pending No. 11–117 (filed July 26, 2011);  J. Harvie Wilkinson III, Cry, the Beloved Constitution, N.Y. Times, Mar. 11, 2012 at A21; Henry Paul Monaghan, A Conservative Law Professor on the Obvious Constitutionality of Obamacare, The New Republic (Apr. 16, 2012), http://www.tnr.com/article/politics/102685/conservative-defense-obamacare-affordable-care-health?utm_source=The+New+Republic&utm_campaign=26aa345d22-TNR_Daily_041612&utm_medium=email.

[14] The phrase “conservative Justices” is used solely for convenience to refer to Chief Justice Roberts and Justices Kennedy, Scalia and Alito as the group of Justices expressing concerns about the mandate at oral argument. It is not intended to suggest that their views are monolithic, as they frequently have divergent views. Justice Kennedy, in particular, has voted with the “liberal” Justices in a number of closely divided decisions.

[15] The word “liberty” does not in fact appear at all in the index to the transcript of the March 27 argument. Instead other terms are used to describe the loss of choice or compulsion which the mandate allegedly entails. The likely reasons for the seeming taboo on use of the word “liberty” will shortly become evident, see text at notes 20–23 and 30–39 infra.

At earlier stages of the litigation, respondents and their supporters famously argued that the mandate is regulating “inactivity” and that the commerce power did not extend to regulation of “inactivity,” but that word also cannot be found in the index to the transcript—perhaps because of the devastating critique of the “inactivity” argument in Judge Silberman’s opinion in Seven Sky, 661 F.3d at 17–20.

[16] United States v. Carolene Products, 304 U.S. 144, 152 (1938); see also FCC v. Beach Communications, Inc., 508 U.S. 307, 313–15 (1993).

[17] Tr. at 12; see also Tr. at 31.

[18] Adam Liptak, Appealing to a Justice’s Notion of Liberty, N. Y. Times, Mar. 30, 2012, at A-1.

[19] See the transcript of the argument on the afternoon of March 28, at 80, 85, available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/11–400.pdf.

[20] Jacobson v. Massachusetts, 197 U.S. 22, ­­26 (1896).

[21] West Coast Hotel v. Parrish, 300 U.S. 379, 391 (1937). Those challenging the mandate argue that these cases involve exercises of the state’s police power, so that Massachusett’s adoption of the mandate is constitutional but Congress’ is not. But the very purpose of the Commerce Clause was to address problems that defied a resolution by individual states and required a national resolution—what Professor Jack Balkin refers to as “collective action” problems arising because, given the intercourse between states, individual states may be deterred from adopting a remedy in the common interest for fear that it will be at a disadvantage with other states that do not. States considering adopting guaranteed issue and community rating provisions supported by a mandate would worry that unhealthy residents will be attracted to move there from states without such laws, and that insurers will prefer locating or operating only in states that do not have such laws. It may be one reason why no state other than Massachusetts has thus far adopted the mandate to address the need for universal care. Recognition of similar collective action problems underlie the 1941 Supreme Court decision in United States v. Darby, 312 U.S. 100 (1941) upholding Congress’ power under the Commerce Clause to enact the federal minimum wage law. See Jack Balkin, Living Originalism 160–63, 174–77 (2011).

[22] 131 S. Ct. 1910, 1928 (2011).

[23] Justice Scalia and Justice Alito suggested that it is unfair to force healthy young people to buy insurance to subsidize older sick people. Tr. at 34–35. Justice Scalia suggested that when young people “think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us.” Id. at 36. But, as the Solicitor General noted, illness or accidents are not predictable and young people who are healthy today are not able to predict the need for an unanticipated medical condition that may arise tomorrow.  Id. And as Justice Kagan observed, “the subsidizers eventually become the subsidized.” Id.

[24] See, e.g., United States v. Carolene Products, 304 U.S. at152; FCC v. Beach Communications, 508 U.S. at 313–14.

[25] Einer Elhauge, If Health insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?, The New Republic (Apr. 13, 2012, 12:00 A.M.), http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable-care-act.

[26] See United States v. Darby, 312 U.S. 100.

[27] The penalty is computed in part based on income and is capped at an amount equal to the national average premium of the most modest of the insurance policies qualifying under the Act and offered on the health care exchanges created by the Act. 26 U.S.C.A. § 5000A(c)(1). Failure to make this payment is not a crime and liens cannot be imposed to enforce the payment.

[28] 317 U.S. 111 (1942).

[29] Id. at 129.

[30] 545 U.S. 1.

[31] Id at 7.

[32] Id at 33.

[33] Raich v. Gonzales, 500 F.3d 850, 861–66 (9^th Cir. 2007).

[34] Florida ex rel. McCollum v. U.S. Dept. of Health and Human Services, 716 F. Supp. 2d 1120, 1161 (N.D. Fla. 2010).

[35] Tr. at 28–29.

[36] Tr. at 29.

[37] Lochner v. New York, 198 U.S. 45 (1905).

[38] See note 21 supra.

[39] See, United States v. Carolene Products, 304 U.S. 144 (1938) and compare United States v. Darby, 312 U.S. 100 (1941) with West Coast Hotel v. Parrish, 300 U.S. 379 (1937).

[40] See, e.g. Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding under commerce power the enactment of public accommodation provisions of the 1964 Civil Rights Act);United States v. Darby, 312 U.S. 100 (1941) upholding the federal minimum wage law and overruling Hammer v. Dagenhart, 247 U.S. 251 (1918), invalidating a federal child labor law.

[41] See 26 U.S.C.A. § 5000A (f).

[42] 26 U.S.C.A. § 5000A (e) (2).

[43] 42 U.S.C.A. § 1396a (a) (10) (A) (i) (VIII).

[44] 26 U.S.C.A. § 5000A (e)(5).

[45] 26 U.S.C.A. § 36B.

[46] 26 U.S.C.A. § 5000A (e).

[47] Justice Scalia suggested that the Necessary and Proper clause might not apply. He first suggested that the mandate is not “necessary” within the meaning of that clause because Congress created the problems the mandate addresses by obligating providers to give uncompensated emergency care and by enacting the guaranteed issue and community rating provisions. He suggests Congress could have avoided the cost-shifting/free-rider problems of the former by eliminating the obligation to give uncompensated care and the adverse selection consequences of the latter by letting insurance companies deny coverage to the sick or charge them higher premiums. Tr. 20, 37–38.

It seems unfair to Justice Scalia to jump to the conclusion that he seriously believes that those unable to pay should simply be left to die in the streets or that sick people should be unable to obtain affordable health insurance. Moreover, as the Solicitor General noted, it is incorrect to treat these problems as Congress’ creations. The obligation to provide care to those who cannot pay is an accepted social norm, Tr. at 20, and the problems faced by those with pre-existing conditions are created by the insurance market, not Congress. Tr. at 38–39. But in any event, the Court’s recent decision in United States v. Comstock, 130 S. Ct. 1949, (2010), makes clear that Congress meets the “necessary” prong of the Necessary and Proper clause if a law, otherwise outside its enumerated powers, is necessary to prevent adverse consequences flowing from Congress’ enactment of those provisions within its powers.

Justice Scalia also suggested that even if necessary, the mandate might not be “proper” within the meaning of the Necessary and Proper clause because it exceeds the limits imposed by the Constitution. Tr. 27–28 But as the discussion throughout this essay shows nothing in the Constitution justifies that suggestion.

[48] See, e.g. Tr. at 6–9, 13, 20, 28, 30, 39–41.

[49] See, e.g. Tr. at 10–14, 44–45.

[50] Justice Kennedy seems to be particularly aware of the importance of this distinction. Tr. at 104.

[51] Tr. at 13.

[52] Bush v. Gore 531 U.S. 98, 109 (2000).

[53] Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct. 694, 710 (2012); see also United States v. Jones, 132 S. Ct. 945, 953 (2012) (holding that attaching a GPS device to monitor an individual’s auto movements involved a trespassory search that violated the Fourth Amendment, but that “there is no reason for rushing forward to resolve” other “vexing problems” where a trespassory search was not involved in the case presented.)

[54] 22 U.S. 1, 197 (1824).

[55] 545 U.S. at 39 (Scalia, J. concurring).