A lot of people have lauded Paul Clement’s performance before the Court yesterday, and deservedly so. But it’s also worth noting that Michael Carvin did a fine job for the NFIB. Some of what I considered the highlights:
Carvin distinguishes Wickard v. Filburn. “Oh, but let’s be careful about what they were regulating in Wickard, Justice Ginsburg. What they were regulating was the supply of wheat. It didn’t in any way imply that they could require every American to go out and buy wheat.”
Carvin destroys the “necessary and proper” argument for the mandate. Justice Ginsburg suggests that Obamacare’s insurance regulation “can’t possibly work” without the mandate, and Carvin replies, “It depends what you mean by ‘work.’ It’ll work just fine in ensuring that no sick people are discriminated against.” The mandate isn’t necessary to enforce that regulation or to keep it from being circumvented. It’s necessary only to ameliorate a side-effect of the regulation. “We, Congress, have driven up the health insurance premiums, and since we’ve created that problem, this somehow gives us authority that we wouldn’t otherwise have. That can’t possibly be right.”
Carvin explains the difference between the mandate and a tax credit. Here he’s responding to Justice Sotomayor: “The difference is that the taxpayer is not given a choice. It’s the difference between banning cigarettes and saying I’m going to enforce that legal ban through a $5 a pack penalty, and saying, look, if you want to sell cigarettes, fine; I’m going to charge you a tax of $5 a pack.” Justice Breyer then says he agrees with Carvin.
Carvin exposes the cost-shifting argument for the mandate. Much of the legal argument for the mandate turns on the ability of people with the freedom not to buy insurance to drive premiums up for everyone else by getting uncompensated care. Carvin points out to Justice Kennedy that the true rationale for Obamacare’s mandate is different. It’s not about keeping young, healthy people from shifting costs to others. In that case, you might require them to buy catastrophic coverage. It’s about shifting costs to those people. That’s why the mandate actually prohibits the purchase of catastrophic coverage.
Carvin flips the argument about the bad old days of the commerce clause. One common argument against a restrictive (or even a bounded) reading of the commerce clause is that it requires constitutional interpreters to devise artificial and unworkable distinctions between what can and can’t be regulated. Justice Alito Kagan refers to this history in a question: “Now, if you look over the history of the Commerce Clause, what you see is that there were sort of unhappy periods when the Court used tests like this, direct versus indirect, commerce versus manufacturing. I think most people would say that those things didn’t really work. And the question is, why should this test, inactive versus active, work any better?” Carvin’s response is masterful. It’s the administration’s case that requires unworkable line-drawing. It insists that the arguments it’s making for the mandate apply only to health markets. “The problem you identify is exactly the problem you would create if you bought the government’s bogus limiting principles. You’d have to draw a distinction between the insurance industry and the car industry and all of that, returning to the Commerce Clause jurisprudence that bedeviled the Court before the 1930s, where they were drawing all these kinds of distinctions among industries, whereas our test is really very simple. Are you buying the product or is Congress compelling you to buy the product? I can’t think of a brighter line.”
Correction: I meant Justice Kagan, not Justice Alito, in that last paragraph.