Day 2: Supreme Court Will Likely Strike Down Obamacare, 5-4


ACRU Staff


March 29, 2012

This column by ACRU Senior Legal Analyst Ken Klukowski was published March 28, 2012 on

On Day Two, Justice Anthony Kennedy noted that Obamacare “changes the relationship of the Federal Government to the individual in a very fundamental way.”

With those words, the individual mandate–the centerpiece of Obamacare–is likely doomed.

Liberal law professors–and some conservatives–speculated beforehand that President Barack Obama might win 6?3, or maybe even 7?2. They predicted that Chief Justice John Roberts might join Kennedy to uphold the mandate. Others said Justice Antonin Scalia might join them. One liberal even predicted that Roberts would write the opinion himself.

There’s exactly a zero chance of that outcome after Tuesday’s argument. Justices Antonin Scalia and Samuel Alito took turns pounding on Obama’s lawyer, Solicitor General Donald Verrilli, while Roberts carved Verrilli up with the chief’s typical gentlemanly and effortless style. And while there is a chance that Kennedy will join the liberals, after today it’s a slim chance.

The infamous individual mandate is Section 1501 of the Affordable Care Act, which requires people to buy health insurance. The Supreme Court is considering whether the U.S. Constitution allows the federal government to wield such power over American citizens. Justice Scalia laid down the fundamental principle at stake regarding the individual mandate: “The federal government is supposed to be a government of limited powers. And that’s what all this questioning has been about.”

Since there’s no health care provision in the Constitution, the Obama administration argues that the individual mandate is authorized by the Constitution’s Commerce Clause, Taxing Clause, and Necessary and Proper Clause. Most of the argument focused on the Commerce Clause. America spends $2.6 trillion a year in healthcare. So the government argued that everything about health care is part of an interstate market that Congress can control, and which counts every individual as a participant in that market.

As Justice Elena Kagan–whose position is clear–argued, “Congress surely has it within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It’s just a matter of timing.” In other words, we all need health services. Congress just chose to make people buy it ahead of time through insurance.

But Chief Justice Roberts rejected this idea when Verrilli pressed it, noting that Obamacare requires that the insurance policy you buy “must contain provisions for maternity and newborn care, pediatric services, and substance abuse treatment.” Although some people will never need such services (for example, a man will never need maternity services), the government requires them to purchase it anyway. Kennedy attacked that point by asking, “Can you create commerce in order to regulate it?” Justice Stephen Breyer responded that, “the answer is yes,” and suggested that the Supreme Court has recognized that fact since 1819 when it held Congress could create a central bank.

Representing the 26 states suing in this case, attorney Paul Clement responded that there is a big difference between saying that Congress can create a central bank, versus commanding every American citizen to deposit all of their money in that central bank so that the bank has enough funds to be stable and effective. Clement explained: “The Commerce Clause gives Congress the power to regulate existing commerce. It does not give Congress the far greater power to compel people to enter commerce.”

Although Justice Sonia Sotomayor argued that government compels everyone in various aspects of all economic activity, calling it “a condition of life,” the challengers would have none of it. Mike Carvin–a partner at Jones Day representing the National Federation of Independent Business and private business owners–made the point that the mandate goes far beyond making people cover their own medical expenses. Carvin pointed out that Obamacare requires young people to pay for services outside of what they may ever use. If a person enters a market simply by being born, “that literally means they can regulate every human activity from cradle to grave.”

Justice Alito pointed out that the individual mandate is not about making people buy health insurance to cover their medical needs. Instead, it’s about making people get insurance that is ridiculously overpriced, so that the extra money can be used to pay for other people’s healthcare. (He cited one brief that said a healthy young adult uses $854 in healthcare per year, but under Obamacare individuals could pay $5,800 a year.)

For all that, it is not a slam-dunk that the individual mandate is going down. Kennedy did keep the door open a crack by suggesting that he might consider health care insurance unique. But taken with his other statements, he appears far more likely to vote with Roberts, Scalia, Thomas, and Alito.

The individual mandate will probably be struck down by the end of this June.

Chief Justice Roberts stated that “whether or not there are going to be limits on the federal power” is the key issue in this case. It’s not about healthcare; it’s about government power against individual liberty.

Kennedy explored that by asking “[w]hether or not there are any limits on the Commerce Clause. Can you identify [any] for us?” The Obama administration suggested various minor options, but they amounted to nothing significant.

So Scalia asked, “If the government can do this, what else can it not do?” The answer is it can do almost anything it wants. And that should prove a bridge too far for the majority on the Supreme Court.



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