As I noted earlier, we’re going to get the Obamacare decision on Thursday morning. We learned today that Chief Justice John Roberts is very likely to write the majority opinion. Here’s what Roberts had to say about the individual mandate at oral argument in March. He wasn’t buying the Obama administration’s theories:
After oral argument, it became more clear that Roberts was skeptical of the mandate’s constitutionality, and understood that the mandate is really about cross-subsidization, and not personal responsibility. “If I understand the law,” Roberts said, “the [insurance] policies that you’re requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment or pediatric services, and yet that is part of what you require them to purchase…You cannot say that everybody is going to participate in the substance use market and yet you require people to purchase insurance coverage for that.”
Roberts was also skeptical that the individual mandate’s consequences could only be limited to health care, because health care is somehow constitutionally unique. “I think that would be a very significant intrusion by the Court into Congress’s power,” Roberts said. “It’s good for you in this case to say, ‘Oh, it’s just [limited to] insurance.’ But once we say that there is a market and Congress can require people to participate in it, as some would say—or as you would say, that people are already participating in it—it seems to me that we can’t say there are limitations on what Congress can do under its commerce power…all bets are off.”
Roberts was less definitive as to whether the rest of the law should go down along with the mandate:
Roberts made several interesting comments in the hearing regarding the mandate’s severability from the rest of the law. Congress “would have passed parts of the hollow shell [of the law],” Roberts said that day. “I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years and it was just more convenient for Congress to throw it in in the middle of 2700 pages than to do it separately.”
On the other hand, Roberts expressed the same concern that other conservative justices did, that it will be impossible for the justices to comb through the law to extract every provision that is related to the mandate. “Do you really expect the Court to do that?” exclaimed Antonin Scalia. “Or do you expect us to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?”
After Deputy Solicitor General Edwin Kneedler gave an unsatisfactory response, Roberts replied, “It’s a question of statutory interpretation. That means you have to go through every line of the statute. I haven’t heard your answer to Justice Scalia’s question yet…Where is this line?” When Kneedler reiterated the adminstration’s position that only guaranteed issue and community rating should go, Roberts expressed skepticism. “No, no. That makes your case that the one provision should fall if the other does. It doesn’t tell us anything about all the other provisions.”
More here. Over on the NRO home page, I make the case that the Court should, in fact, overturn the whole law.
— Avik Roy is a senior fellow at the Manhattan Institute and the author of The Apothecary, the Forbes blog on health-care and entitlement reform. He is a member of Mitt Romney’s Health Care Policy Advisory Group. You can follow him on Twitter at @aviksaroy.