The Supreme Court just granted certioriari to the constitutionality of President Barack Obama’s Patient Protection and Affordable Care Act--a/k/a "Obamacare." The timing could not be better. On Saturday, at the Fourth Annual Rosenkranz Debate and Luncheon at The Federalist Society's National Lawyers Convention, former solicitor general Paul Clement and Professor Laurence Tribe debated the very question. It was truly a preview of coming attractions since Clement will be arguing the case before the Supreme Court.
Professor Tribe began by providing some background on the Act. It was signed into law in March 2010 and represented Congress’s attempt to tackle the health care crisis — a crisis that involves some 17 percent of our GDP. He pointed out that health care is unlike other markets because hospitals don’t turn away patients, which means that the health care costs of the uninsured effectively get passed along to everyone else.
The “individual mandate” provision of the Act attempts to encourage coverage by imposing a tax penalty on people who do not buy health insurance. This provision will (1) encourage people to purchase coverage and (2) raise revenue from the people who don’t. It provides an incentive for people to acquire health insurance in advance of when they will actually need care, which is more efficient and effective than the status quo. We know that pretty much everyone will need health care at some point in their lives, so why should we wait until they get injured or sick before we deal with the problem?
Tribe noted, with approval, the decisions by the Sixth Circuit and the D.C. Circuit upholding the validity of the Act. He noted that distinguished conservative jurists such as Judge Jeffrey Sutton (6th Cir.) and Judge Laurence Silberman (D.C. Cir.) have written in defense of the law. He added that even the Eleventh Circuit, which struck down the individual mandate, conceded that the federal government can regulate health care at the time the patient seeks care (because at that point there is indisputably some “commerce” to be regulated).
Opponents of the Act argue that this is like United States v. Lopez, where the Court struck down a law prohibiting people from carrying guns near schools, finding a lack of economic activity. But it is an “economic activity,” according to Tribe, to make other people pay for your health care — which is what ends up happening under the status quo, without the Act.
Tribe concluded his opening remarks by addressing the “slippery slope” arguments made by opponents of the law. He noted that the Act does not force anyone to have any particular medical procedure or change their lifestyle in any particular way (think of the hypotheticals involving government-mandated broccoli consumption). In any event, if it did attempt to do such things, substantive due process concerns would block it.
(This was a Federalist Society event, so substantive due process might not have been the best doctrine to invoke by way of reassurance. But you get his point.)
Clement began his response by emphasizing the “mandate” part of the “individual mandate”: the Act actually orders people to buy health care insurance, a mandate that it happens to enforce with a tax penalty. Even people who are not subject to the penalty — e.g., because they fall below a certain income threshold — are still subject to the mandate (at least as a theoretical matter).
In terms of the relevant market, it should be thought of not as the market for health care, but the market for health care insurance — which people are being forced to buy. They are being forced to purchase it even if they could get by without it. (Maybe you can’t get away without using health care — set aside, for now, Christian Scientists, hermits hiding in the woods, etc. — but you can certainly get away without using health insurance, as millions of people currently do.)
With these observations in mind, what is the Act doing? It is forcing someone to engage in commerce, not regulating commerce that already exists. If this Act is constitutional, according to Clement, the nothing lies beyond the reach of the Commerce Clause — a violation of our federal system, in which the federal government has specific, enumerated powers, not plenary power that touches upon all things.
Under the current system, if you want to avoid federal regulatory power over commerce, you can exercise your right to refrain from engaging in the commerce at issue. Under the Act, however, the federal government can force you to engage in a specific kind of commerce — and then, conveniently enough, regulate that which it has forced you to do.
The primary question with respect to the Act, repeatedly emphasized by Clement throughout the debate, is the following: “What is the limiting principle?” If you look at the Supreme Court’s past Commerce Clause cases, such as Lopez and Morrison, you see that the federal government loses when it can’t state a limiting principle.
If the Act is constitutional, what are the remaining limits on the federal government’s power under the Commerce Clause? If we can force people to buy health insurance, why can’t we force them to buy wheat (cf. Wickard v. Filburn), or force them to buy cars (cf. cash for clunkers)?
In short, Clement concluded, the Act must be struck down. First, it violates the prerogatives of states and the limited nature of federal power (note that Clement represents 26 states challenging the law). Second, it violates individual liberty, by forcing people to engage in commerce against their will. Third, it violates principles of political accountability: if the government wants to raise taxes, which it could be argued is what is really going on here, it should be forced to do so openly and explicitly. (Note how President Obama, in selling the law, denied that it was a tax increase — even though federal government lawyers, subsequently defending the Act, relied in part upon the government’s taxing power.)
In his rebuttal, Tribe questioned whether there was really a difference between “regulating” commerce and “forcing” commerce — i.e., in the process of regulating, the government forces citizens to do certain things. He also emphasized, in a line of reasoning that might appeal to Federalist Society-types, how much political will it takes to pass a law like Obamacare. (In other words, maybe you might not like the Act as a policy matter, but if that’s your problem, you should defeat it through the political process.)
Tribe also noted an interesting point made by Judge Brett Kavanaugh of the D.C. Circuit (who ultimately found no jurisdiction to rule on Obamacare at the current time, pursuant to the Anti-Injunction Act). Judge Kavanaugh noted that the health care law would be clearly constitutional if, instead of “mandating” the purchase of health insurance, it simply operated as nothing more than a tax penalty, telling the citizen, “It’s your choice: you can purchase health insurance, or you can take a hit come tax time.” In Tribe’s view, this is really what the Act effectively does, and so it should be upheld for this reason.
Clement responded by agreeing that yes, there are constitutional ways to achieve the same policy goals as the Act — which is all the more reason why the Constitution should be respected, and the Act should be struck down and then passed in a form that would pass constitutional muster. (Of course, given the current composition of Congress — which changed significantly after the Act was signed into law in March 2010, thanks to the midterm elections — that’s not terribly likely.)
Who won the debate? It depends on how you score it. Clement was the more skillful debater — he’s had a lot of practice, arguing against the Act in the lower courts — but Tribe made many strong points as well, and I came away from the debate thinking that SCOTUS will probably uphold the Act.
This is a view shared by a number of observers, such as Professor (and former Kennedy clerk) Orin Kerr, who told Joan Biskupic of USA Today that he thinks AMK will vote to uphold, based on his prior writings. And it makes a certain amount of sense based on reading the circuit-court tea leaves; well-respected conservative jurists like Judges Sutton and Silberman have voted in favor of the Act.
But, of course, the Supreme Court isn’t bound by its own Commerce Clause precedents in the way that lower courts are bound by them. And thanks to Clement’s excellent advocacy, I now realize the question posed to SCOTUS is far closer than I originally thought. It will be very interesting to see how the justices rule — and very interesting to see the political consequences of their ruling, which should come a few short months before the 2012 presidential election.