Bench Memos

Obamacare Oral Arguments: ‘Train Wreck’?

After today’s oral arguments on the individual mandate’s constitutionality, CNN’s liberal court correspondent Jeffrey Toobin, who has expressed great disdain for the constitutional challenge to Obamacare,  remarked that “[t]his was a train wreck for the Obama administration. This law looks like it’s going to be struck down. All of the predictions including mine that the justices would not have a problem with this law were wrong.”

All reports are that Solicitor General Verrilli did a poor job defending the law. The Atlantic Wire compiled reports of General Verrilli’s performance:

Remarking on his cadence, The Atlanta Journal-Constitution’s Jamie Dupree wrote “from the outset, Verrilli seemed nervous, as he coughed during one of his opening lines, re-started his presentation to the Justices, and then interrupted himself to reach down for a glass of water.” He adds, “his voice seemed to warble while he almost stammered at times in a search for words.” The Washington Post’s Ezra Klein says like-minded justices even tried to help him out as he struggled along. “You can mark — p 14 — when liberal justices decide Verrilli is screwing up and step in,” he tweets.  ”Yup. It’s an incredible moment,” adds writer Alex Klein. BuzzFeed’s Zeke Miller went ahead and spliced together all of his stumbles and stutters, and uploaded it to YouTube [here].

But of course General Verrilli’s performance alone could not make the oral arguments a “train wreck.”

Although the following is not intended to predict the case’s final outcome, to give readers a quick sense of what could have troubled Toobin so much,  I compiled quotations (not ordered chronologically), from the transcript of today’s arguments (emphasis mine).

On the lack of a reasonable limiting principle for the Commerce Clause, and if the health-care market’s uniqueness justifies this exercise of the clause:

Justice Breyer:  “And then the question is when you are born, and you don’t have insurance, and you will in fact get sick, and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?”          

Response by NFIB attorney, Michael Carvin: “If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave.”

Chief Justice Roberts: “Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will . . .”

Justice Scalia: “Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”

Chief Justice Roberts: “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, just like in any other area, all — given significant deference that we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way.” 

On the mandate’s changing the relation of the individual to the government:

Justice Kennedy:  “When you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”

Justice Kennedy:  “And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.”

On the government’s expansive interpretation of the health-care market for the purposes of the Commerce Clause

Justice Scalia:  “By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it and that’s — that’s difference from regulating in any manner commerce that already exists out there.”

On using the Necessary and Proper Clause to justify the individual mandate

Justice Scalia:  “Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers.


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