Among various other flaws, Jeffrey Toobin’s New Yorker commentary on last week’s oral arguments contains this remarkably confused passage (emphasis added):
The questions from the quartet of [Anthony] Kennedy, John G. Roberts, Jr., Antonin Scalia, and Samuel A. Alito, Jr., amounted to a catalogue of complaints about the Affordable Care Act. . . . In particular, they appeared to regard the law as scandalously cruel to one party in the debate—and it wasn’t the uninsured. The Justices’ own words revealed where their sympathies lie. Roberts: “If you’re an insurance company and you don’t believe that you can give the coverage in the way Congress mandated it without the individual mandate, what type of action do you bring in a court?” Scalia: “That’s going to bankrupt theinsurance companies if not the states.” Alito: “What is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?” Kennedy: “We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”
Let’s catalogue Toobin’s errors:
1. For starters, it’s the Obama administration that seeks to coerce all Americans to become customers of insurance companies, and it’s the individual mandate that is the means of coercion. So it’s the supporters of the individual mandate, not those who Toobin fears will invalidate it, who, as an objective matter, would more sensibly be charged with having sympathies for insurance companies.
2. If we’re going to impute “where … sympathies lie,” it ought to be clear from the oral-argument session on the individual mandate that those who have concerns about the legality of the mandate were focused on the rights and interests of those who do not want to purchase health insurance—specifically, on healthy young adults who, under community rating, are being compelled to subsidize the more expensive coverage of others.
3. Although he doesn’t disclose it, all of the questions and comments that Toobin quotes in the passage above are from the oral-argument session on the severability question. Recall that it is the Obama administration’s position that the individual mandate can’t be severed from the guaranteed-issue and community-rating provisions—in other words, that if the individual mandate falls, these other provisions need to fall as well. Failure to invalidate those other provisions, the deputy solicitor general explained, would “cause all the adverse selection problems that arise”—to the severe detriment of … insurance companies.
Now let’s understand the justices’ questions in their proper context:
The Chief Justice was questioning the Court-appointed attorney who was arguing for the position that the Obama administration rejected—that the individual mandate could be severed from the rest of the legislation. (See transcript at 70.) He was trying to understand how that alternative—much less favorable to insurance companies—would work.
Justice Scalia (transcript at 48), Justice Alito (transcript at 52), and Justice Kennedy (transcript at 36) were obviously trying to understand how the Obama administration could coherently draw the severability line where it did. In other words, if the Court is to deem the guaranteed-issue and community-rating provisions inseverable from the individual mandate because of “all the adverse selection problems that arise” for insurance companies if the individual mandate alone is stricken, what principled basis is there not also to deem inseverable (as Alito put it) “other provisions that increase costs substantially for insurance companies”?
None of these justices “appeared to regard the law as scandalously cruel” to insurance companies. On the contrary, their questions were premised on the assumption that the Obamacare legislation, in its entirety, was carefully balanced to be fair to insurance companies. The issue they were exploring in the severability context was simply how much of the law ought to be deemed inseverable if the mandate were to fall. I don’t see how any of their questions and comments, fairly read, can be said to display any “sympathies” for insurance companies—and certainly nowhere near the level of support for the insurance companies that the individual mandate itself provides.
[Cross-posted on The Corner]