High Court Hopes
Now that the oral arguments are over: What should SCOTUS do?


Last week, my hope for how the Court rules in this landmark case might have been dismissed as mere wishful thinking. After sitting through over six hours’ worth of argument and hearing the justices’ questions, however, I am cautiously optimistic that there is a chance every issue in this mammoth case could go the right way.

Here’s what that would mean. I think the case will proceed to the merits, which will save the economy, the state budgets, and defenders of the Constitution years of limbo and often-expensive speculation. On the mandate issue, I share Justice Kennedy’s concerns about fundamentally changing the relationship between the individual and government and I think five justices will agree. Politically, that result would trigger a Citizens United redux, with the president calling the majority of the justices activists, despite the fact that the only questions invoking policy concerns were raised in favor of the law.

The severability issue may determine how effective that rhetoric will be for the president. After Wednesday’s argument, I believe the Court will strike down something between the administration’s minimalist position and the whole law, with a real possibility that the whole law goes down. The most dramatic outcome might give the president the most ammunition in an election year, because he will frame it as nasty Republican judges’ taking away health care from a great part of the electorate. That said, I think the outcome would be worth it, because the complete invalidation of the law also happens to be the correct legal decision, would provide the most clear future for Americans making health-care decisions, and would likely make it a much simpler task for Congress to fix the health-care system, because it wouldn’t yoke them to a crippled law already in place. It also would have the happy side effect of eliminating the pernicious First Amendment issues the president has recently provoked with his HHS regulations.

In that case, the Court won’t need to reach the Medicaid issue, which may be for the best. The justices signaled their concern about the coercive tendencies of the federal government in a way that may make Congress think twice in its next Spending Clause endeavor, but the Chief Justice also sent some sobering messages to the states about the risks of accepting money with strings attached. Drawing a clearly administrable line for coercion is no easy matter, and the Court will probably be relieved to dodge that task.

Carrie Severino is chief counsel and policy director at the Judicial Crisis Network.


This week’s Supreme Court oral argument did not go well for the individual mandate. The conservative justices zeroed in on the biggest weakness in the pro-mandate case: the fact that the federal government’s rationales for the law would also justify virtually any other federal mandate, including laws forcing people to purchase broccoli, cars, or just about any other product. This undercuts the principle that the Constitution sets limits to the scope of federal power.

Justice Antonin Scalia highlighted another important weak point in the federal government’s case. Many experts believe that the federal government’s strongest rationale for the mandate is the claim that it comes under the Necessary and Proper Clause, which gives Congress the authority to enact laws “necessary and proper for carrying into Execution” other powers given to Congress under the Constitution. The federal government emphasized the fact that the Court has defined “necessary” extremely broadly. But Scalia pointed out that 1) a law must be both “necessary” and “proper” to be authorized by the Clause, and 2) a statute cannot be proper if the legal rationale for it would justify nearly unlimited federal power. The federal government’s argument for the mandate turns the Necessary and Proper Clause into a mere “Necessary Clause.”

The Obama administration also argues that the mandate is a tax authorized by the Tax Clause. Even the liberal justices seemed to reject this dubious theory.

It is still far from certain that the plaintiffs will prevail. The federal government has numerous arguments intended to prove that this mandate is unique. If it can persuade just one of the conservative justices to accept just one of these theories, it can still win, since it is certain to get the votes of the four liberals. Nonetheless, the mandate is looking a lot shakier than many expected.

— Ilya Somin is an associate professor at George Mason University School of Law. He has written an amicus brief in the individual-mandate case on behalf of the Washington Legal Foundation and a group of constitutional-law scholars urging the court to strike down the law. He blogs regularly at the Volokh Conspiracy law and politics blog.


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