Politics & Policy

High Court Hopes

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


Most liberal legal commentators and academics have been quite dismissive of the constitutional arguments against the individual mandate. The same cannot be said of the Supreme Court. This week’s oral arguments in Department of Health and Human Services v. Florida made clear that a majority of justices take these arguments very seriously, and may even strike down the law. This is heartening. The individual mandate represents an unprecedented assertion of federal power in that it is premised on the claim that the federal government may compel commerce in order to regulate it and that federal regulatory authority may reach each and every American without regard to the choices he makes. Such an assertion of federal power reflects neither the letter nor the spirit of the Constitution, and should be struck down for exceeding the scope of the federal government’s limited and enumerated powers.

Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama’s signature legislative accomplishment have suggested that doing so will undermine the Court’s credibility. They suggest that a decision striking down the mandate would be another Citizens United or, worse, Bush v. Gore. Given the mandate’s unpopularity, this is a hollow threat. If anything, the justices should be more wary of another Kelo, of upholding an assertion of government power that most Americans find repugnant. This is not to suggest the justices should base their decision on popular opinion, for the Constitution should be their guide. It is, however, to suggest that the Court’s credibility is at risk when it fails to constrain unconstitutional assertions of government power.

— Jonathan H. Adler is Johan Verheij Memorial Professor of Law, and Director of the Center for Business Law & Regulation, at the Case Western Reserve University School of Law.



If the question is what I hope to see from the Supreme Court, the answer is that 1) the mandate is declared unconstitutional and 2) the Court strikes down the whole law because the mandate isn’t severable. And, like a former president, I still believe in a place called Hope.

But the scenario above is grounded in more than hope. By happy coincidence, it also reflects the best interpretation of Supreme Court precedent regarding the key questions of congressional authority and severability. As Justice Kennedy suggested in oral arguments yesterday, the government bears a heavy burden in this case, in large part because it is seeking to break new ground in terms of congressional authority.

It is not just that never before has Congress used its Commerce Clause authority to force people who are not in a market — who are doing little more than sitting on couches eating Cheetos — to buy a product they do not want to buy, although that would be enough. It is that the government’s argument, if successful, would apply to far more than health care. Indeed, it would fundamentally alter our system of government, granting to the federal government the kind of general police powers that the Constitution reserves for the states.

But however the Supreme Court rules, the decision will not make good health-care policy — that question isn’t even before the Court. It really can’t be said too emphatically that members of Congress should not be looking for the Supreme Court to save them from themselves. Instead, lawmakers should be prepared (in case the Supreme Court doesn’t throw out the whole law) to clean up any of the mess that is Obamacare that may remain. Only after full repeal can Congress get started on advancing patient-centered, free-market health reforms.

— Robert Alt is director of the Rule of Law programs at the Heritage Foundation.


Yes, Obamacare is “unprecedented” — an unprecedented federal power grab. If allowed to stand, the law would steadily shift immense control over the entire health sector from states, employers, private companies, and individuals to federal bureaucrats. And once the big changes scheduled for implementation in 2014 are set in motion, they will be very difficult to reverse later.

So what needs to happen is pretty obvious — full repeal, and the sooner the better. But that’s not all. Congress also needs to replace Obamacare with a program that is affordable and relies on market-based consumer choice, not government coercion.

The Supreme Court can and should do the first part of the job — repeal. As we have heard this week, there are strong reasons to strike down both the individual mandate and the Medicaid expansion on constitutional grounds. And if those provisions are struck, it will be near impossible for the justices to rationally decide which other provisions should remain in place, given the political and policy compromises that were made in Congress to assemble the law in the first place.

Though this week has gone well in terms of oral arguments at the Court, conservatives should not get complacent with respect to either repeal or replacement. If the Supreme Court upholds the law, it will be necessary to repeal and replace Obamacare in the legislative process. And if Obamacare is struck down in whole or part by the Court, Congress will still need to finish the job by replacing whatever is left standing with a workable program that is consistent with the Constitution and that will solve the problems voters want addressed.

The Supreme Court should be a trusted defender of our constitutional liberties. But that does not absolve Congress of the responsibility to replace Obamacare with a sensible, constitutional, and affordable reform plan for American health care. Done right, such a plan would effectively close the door on the kind of ideological power play in the health sector that Obamacare represents.

 — James C. Capretta is a fellow at the Ethics and Public Policy Center. He was an associate director at the Office of Management and Budget from 2001 to 2004.



I have mixed feelings.

I have long been partial to the views of the early nationalists: Madison’s original “Virginia Plan” called for vast congressional powers, to “legislate in all cases . . . in which the harmony of the United States may be interrupted.” For two centuries, economic conservatives have promoted national unity by facilitating commerce and private property, which requires a powerful national government. This leaves me somewhat sympathetic to the argument advanced by the government.

Still, Obamacare is a symbol of what is wrong with our system. After a 2008 presidential campaign that could have been a season of American Idol, a poorly informed electorate rashly selected a pseudo-celebrity left-winger posing as a bipartisan healer over a war hero with an actual record of bipartisanship. Similarly, the country fell for the rhetoric of seemingly moderate “New Democrats,” never realizing that they are actually led by hack machine pols from the big cities and crusty old Sixties radicals. 

In both cases, the people should have known better. None of what has happened in the last three years is a surprise to anybody who paid close attention in 2008.

So in a lot of respects the people have gotten what they deserved. They brought this misery on themselves by their stubborn inattention to even the most basic of civic details. Why should they expect the Supreme Court to bail them out for their indolence? Ultimately, the people are responsible for Obamacare, so let them take care of it. Let them finally start paying attention to the unholy mess that is Washington, D.C., and do the hard work that is required of citizens of a republic.

But I have no expectation that the people will rediscover civic virtue until after disaster strikes, and I personally do not want to pay the costs of this monstrosity. Thus I am rooting hard for the Court to strike it down. I prize the wellbeing of my family over Hamiltonian nationalism!

— Jay Cost is the author of the forthcoming Spoiled Rotten: The Story of How the Democratic Party Embraced Special Interests, Abandoned the Public Good, and Came to Stand for Everything It Once Opposed.


One of the least-noticed mistakes made by the Obama administration in its arguments for its health-care law this week was the claim by Solicitor General Donald Verrilli that Congress had passed Obamacare to deal with a pressing national problem only “after long study and careful deliberation.” I’m told that even liberal lawyers in the courtroom had pained looks on their faces at that preposterous assertion.

Certainly the general public doesn’t buy that argument, as indicated by the polls. I doubt many lawyers do either. Congressional leaders bullied members into voting for the measure in the dead of night, blatant payoffs such as Nebraska’s “Cornhusker Kickback” and Florida’s “Gatoraid” were handed out, and members were given almost no time to absorb the bill’s 2,700 pages (leading House speaker Nancy Pelosi to say, candidly, “we have to pass the [health-care] bill so that you can find out what is in it.”) At least one Supreme Court justice is said to be astonished that process was so sloppy that Congress left out the traditional “severability” section, which routinely allows that should the courts strike down part of a law the rest would stand.

Indeed, the third day of oral arguments in the Supreme Court brought a mild surprise: At least five of the justices are considering repealing all of Obamacare, either because the task of figuring out which parts can work absent an individual mandate is too onerous or they don’t believe Congress would have passed the bill without the mandate. In other words, the Court just might take the extraordinary step of sending Congress a stiff rebuke: that its recklessness and sloppiness in lawmaking should have some limits.

Randy Barnett, the Georgetown law professor who has bravely pushed the legal arguments against Obamacare with bulldog tenacity for two years, summed up what has been a good week for the law’s critics: “After these arguments, if the Court strikes down the Affordable Care Act, no one in the country will be surprised.” Indeed, if it happens, a majority of Americans will be relieved. And the battle over putting back some serious curbs on Congress’s ability to run roughshod over the Constitution will then begin in earnest. 

— John Fund, a New York writer, is author of Stealing Elections: How Voter Fraud Threatens Our Democracy.


I hope the Court rules Obamacare unconstitutional. The fact that Congress had many other ways to expand insurance pools has undermined the necessary and proper claim for the mandate. As Roger Vinson noted in his district court ruling, “While the individual mandate was clearly ‘necessary and essential’ to the Act as drafted, it is not ‘necessary and essential’ to health care reform in general.” The mandate is a way to redistribute premium revenue from the young and healthy to other groups. Under Obamacare, it is possible to pay the penalty and use the free emergency care that must still be provided under current law. I think all the judges regard Obamacare as unconstitutional and a failure.

If the Court overturns the law, Obamacare again becomes an issue. Supporters will warn that young people will lose coverage under their parents’ plan and that this will undo community rating. Opponents will be able to say the ruling stops a tax increase, blocks the indirect tax Obamacare imposed on people forced to buy the amount of health-care coverage deemed necessary by government, and pulls the plug on rationing. I hope legislators introduce a market-based reform plan that makes low-cost coverage available. If Obamacare supporters want to reintroduce the law with higher taxes and more regulation, let them.

— Robert Goldberg is vice president of the Center for Medicine in the Public Interest.


As the Court began hearing oral arguments, I felt that it should overturn the individual mandate, invalidate the Medicaid expansion, and toss the entire Affordable Care Act out. My sentiments were reflected in three amicus briefs filed with the Supreme Court, and were based on the porous economic foundations of the government’s arguments.

Unfortunately, the legal community seemed to see it differently, as reflected in our poll of former Court clerks and lawyers who had argued in front of the Court. From that perspective, the probability of my preferred outcome was exceedingly low — under 1 percent. (Asking experts who actually know something about the topic can be sooooo disappointing.)

Something had to give.

Having watched the Court in action the past two days, I now think that the individual-mandate issue is a toss-up — and I still think that on the merits it should be overturned. As for severability, the Court appears to be struggling. It does not want to toss the entire Act, but can’t find a principled way to draw a line between provisions that should stand and those that should be tossed along with the mandate.

My revised position is admittedly influenced by the politics: overturn the mandate and sever it, and only it, from the act. The former is right on the substance and the politics; the latter is the most conservative action the Court could take, and makes the future of the act Congress’s problem.

That’s fine with me. The ACA without the mandate is unworkable, and both Democrats and Republicans will agree it should not be implemented. That allows for simply deferring implementation as the bipartisan action of 2012, while the real future of health-care reform hangs in the electoral balance. That is as it should be.

— Douglas Holtz-Eakin is president of the American Action Forum.


Phil Kerpen

When President Obama was a senior lecturer at the University of Chicago Law School, he taught the Constitution from a decidedly unconventional perspective, one characterized not by admiration for the governmental structure designed by James Madison and his illustrious colleagues, but by contempt for it.

As Obama himself explained it in a 2001 radio interview: “The Supreme Court never ventured into the issues of redistribution of wealth and more basic issues of political and economic justice in the society and to that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”

This week the Obama administration asked the Roberts Court to do what Obama faulted the Warren Court for not doing. He wants them to break free of the Constitution’s “essential constraints” on federal power.

If the Roberts Court sides with Obama, the Commerce Clause would be transformed into a de facto plenary power, allowing the federal government to do nearly anything. That was clear this week when the government failed to articulate any principle limiting federal power under its understanding of the Commerce Clause.

This is despite the clear structure of the document and the inclusion of the Ninth and Tenth Amendments to prevent this type of inversion. If this were permitted, Obama’s dream of breaking free from the Constitution would become a reality.

The rest of us must focus on electing a Congress and a president who respect the Constitution and see its limits on federal power not as constraints to be broken but as protections to be cherished.

— Phil Kerpen is the author of Democracy Denied: How Obama Is Ignoring You and Bypassing Congress to Radically Transform America — and How to Stop Him.


The tenor of the Justices’ arguments yesterday certainly primed the public for a historic ruling, but Obamacare is likely doomed no matter what the Supreme Court does. Obamacare is likely to create a disaster in the insurance industry even if the Supreme Court upholds the law in its entirety, as the experience of the failed 1990s state reforms shows. So even if it survives the Court challenge, Obamacare could be closer to repeal than most people think. 

If the Court strikes down the individual mandate, however, we could have one of three scenarios: The Court could (1) strike down the entire law, (2) uphold the rest of the law, or (3) strike down some combination of core provisions. Each of those scenarios has benefits. If the Court strikes down the whole law, we solve the whole problem of Obamacare and can finally get back to market-based reforms. If the Court upholds the rest of the law, the insurance companies will scream bloody murder, and would likely get Congress to repeal the whole law, or at least its core provisions. If the Court strikes down only some provisions along with the mandate, we will be left with a shell of a law that no Congress ever passed and none ever would have passed. 

The Court is most likely going to uphold the Medicaid-expansion provisions of Obamacare, but the controlling precedent — South Dakota v. Dole (1987) — is fatally flawed. Even if the Court upholds the Medicaid provisions, it should replace the standard of Dole with a workable standard that protects the states against federal coercion.

When all is said and done, conservatives can’t simply hope for the defeat of Obamacare. We must fight for the freedom to implement state-based solutions so that we can experiment with real common-sense, market-based reforms that ensure access to affordable health care for all Americans. To misappropriate Winston Churchill, defeating Obamacare “is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” This war, however, will only be won when have turned America away from its headlong rush to become a bankrupt entitlement state, and back to the principles of self-reliance and limited government that made our country great.

— Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.



Anything can still happen. As I wrote the other day, it would be premature for conservatives to celebrate. But I’ve gone from thinking that there was nearly zero chance that the Court would strike down the whole law to thinking it could be close to a 50/50 proposition. The Court clearly understands that, if it strikes down the mandate and a few related provisions, they could be creating a huge mess that will severely disrupt the American health-care system. I was also struck, as everyone else has been, by how receptive Justice Kennedy seemed to the argument that the mandate is unconstitutional. Conservatives are justifiably optimistic about what could happen in June.

I would simply say that we need to be prepared for all outcomes. If the Court upholds the law, we need to work that much harder on repeal. If the Court only repeals the mandate and possibly a few closely related provisions, we need to begin explaining to people how problematic the rest of the law still is. And if the law is thrown out entirely, we need to do the hard work of articulating our own free-market solutions to the many problems our system faces, so that no one will ever again think that we need a law like Obamacare.

 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. You can follow him on Twitter at @aviksaroy.


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.


Justice Anthony Kennedy was viewed as the key vote heading into the U.S. Supreme Court arguments over the constitutionality of Obamacare, and he remained the key — and still uncertain — vote as the sessions concluded on Wednesday.

Opponents of the law cheered when Justice Kennedy asked early during Tuesday’s argument over the individual mandate: “And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act . . . and that changes the relationship of the Federal Government to the individual in a very fundamental way.”

We have been saying since before the law was enacted that it would turn citizens into subjects, beholden to the all-powerful federal government. By forcing them to buy expensive private health insurance that they may not want or think they need, the federal government would be dictating not only what health care they will get but how they must spend their own after-tax money — in clear violation of their liberty.

Kennedy’s key words — “changes the relationship of the Federal Government to the individual” — indicated that he has serious concerns about the mandate.

But toward the end of Tuesday’s session, Kennedy suggested he could also be convinced that “the insurance market is unique.” He asked about a “young person who is uninsured.” He said that being uninsured is “very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.” If so, mandating the purchase of insurance could be seen as a justifiable power under the Commerce Clause.

So he isn’t so sure after all. Those who were cheering on Tuesday could find themselves shocked, if Kennedy actually were to vote to uphold the mandate because health care is unique and because of his concern about cost-shifting.

The issue that preoccupied the justices during Tuesday’s arguments on the individual mandate involved the question of “uncompensated care” — that is, the concern that people who don’t have health insurance will shift their costs of inevitable care to those who do have health coverage.  

The Galen Institute and several of our sister organizations submitted an amici curiae brief to the Supreme Court addressing precisely this issue and showing that the law actually exacerbates the problem of uncompensated care. In our brief, submitted to the court in February, we pointed out that instead of solving the problem of “free riders” who consume health care that they don’t pay for, the actual impact of the law will be to increase the cost shifting by $3 billion a year. I explain the details here.

Tom Miller of the American Enterprise Institute also challenges Congress’s “findings” about the cost of uncompensated care, citing studies that show that the “amount of uncompensated care potentially available for private cost-shifting is most likely even lower, at about $8 billion in 2008.”

This is clearly no reason to bankrupt the federal government and shred the Constitution. The law should be struck down in its entirety. It truly will make the problems we need to solve even worse, and create many more throughout our health sector and economy. After listening to the argument, I think there is a good chance the Supreme Court will agree.

— Grace-Marie Turner is president of the Galen Institute and co-author of ObamaCare Is Wrong for America.

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