Bench Memos

Katsas on the Ruling

Greg Katsas, a partner at Jones Day, is one of the lawyers who argued the case against the individual mandate in the president’s health-care law before the Supreme Court. He reacts to Thursday’s ruling in an interview with National Review Online.


KATHRYN JEAN LOPEZ: As someone who argued the case, what exactly does this ruling mean? How would you best describe it? 

GREGORY G. KATSAS: Congress lacks constitutional authority to force individuals to buy unwanted goods and services (including health insurance), but Congress can tax individuals for not buying unwanted goods and services (including health insurance). The Court struck down the statute that Congress in fact enacted, which was a legal requirement to buy health insurance, but then, to save the statute, pretended that it was nothing more than a tax on being uninsured.


LOPEZ: Does this mean the health-care bill itself is constitutional? Do you have other concerns from a legal point of view that are being and ought to be pursued? 

KATSAS: The individual mandate was held constitutional only by re-characterizing it as a tax on being uninsured. The Medicaid expansion was held unconstitutional, but the remedy for that was simply to allow the states to opt-out of it. Other provisions of the statute were upheld.


LOPEZ: What does it mean, from a legal point of view, about the limits of government?

KATSAS: The Commerce Clause and Spending Clause holdings impose significant limitations on congressional power, but the former was largely undone by the tax holding.


LOPEZ: Does it surprise you? Disturb you? 

KATSAS: Yes. Yes. 


LOPEZ: Could the case have been approached differently? 

KATSAS: No. I think we made all of the best arguments on our side of the case. 


LOPEZ: Did you see signs of this during the questioning? 

KATSAS: Up to a point. During the AIA argument on Monday, the Chief Justice pressed the idea that the mandate might be nothing more than a tax. But we gave the right answers to those questions, and the government’s tax argument seemed to get very little traction during the merits argument on Tuesday. 


LOPEZ: What does this teach us about the Court?

KATSAS: It has no discernible conservative majority, and it may be susceptible to pressure from the media and the administration.