David Cole is The Nation's legal affairs correspondent.
Tuesday's historic oral argument on the constitutionality of Obamacare left some court watchers worried that the law was on the ropes. Jeffrey Toobin of the New Yorker and CNN pronounced the argument "a train wreck for the Obama administration," and predicted that the law would be struck down. Adam Liptak of the New York Times opened his account by describing the "barrage of skeptical questions" directed at Solicitor General Don Verrilli as he stood up to defend the law. There was certainly a basis for their assessment. Justices Antonin Scalia, Samuel Alito, John Roberts and Anthony Kennedy all asked tough questions of Verrilli, and no one has any doubts about where Justice Clarence Thomas stands on the matter, even though he predictably maintained his now-six-year silence as a sitting justice. The four more liberal justices all made clear that they viewed the Affordable Care Act's mandate — the requirement that people who can afford to do so must purchase health insurance or pay a tax penalty — as constitutional. But it takes five votes to uphold the law. So will the law be struck down?
As Mark Twain might say, reports of Obamacare's demise are greatly exaggerated. While the conservative justices expressed considerable reservations about the law's scope, Justice Kennedy, the key swing vote, also noted, near the very end of the argument, that the unique context of the healthcare market may be sufficient to validate the "individual mandate." The biggest challenge the government has faced in defending the law has been the articulation of a limiting principle, and by argument's end it seemed that Justice Kennedy might have heard one that he could sign on to. If he does vote to uphold the law, it's possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.
Kennedy began his questioning by asking Verrilli whether Congress could "create commerce in order to regulate it," echoing the challengers' contention that while Congress can regulate commerce under the Commerce Clause, it should not be empowered to require people to "enter into commerce" — by purchasing health insurance against their will — in order to regulate them. If Congress has that power, the challengers maintain, there would be no limit to the federal government's power. It could require people to buy broccoli, health club memberships, cellphones or burial insurance — all hypotheticals posed to the solicitor general by the Court's conservative justices. And one of the Constitution's most basic premises is that the federal government is a government of limited powers. As Justice Kennedy asked Verrilli, "Can you identify any limits on the Commerce Clause?" To get Kennedy's vote, there has to be an affirmative answer to that question.
There is a limiting principle, however, and Verrilli and several of the justices articulated it during the two-hour-long argument. The nature of healthcare is such that we are all inevitably participants in the healthcare market (save for the Christian Scientists, and they are exempt). No one can avoid the need for healthcare, no one can predict when he or she will need it, and virtually no one can afford it when he or she does need it. And ultimately, the healthcare market provides free care to those who cannot pay for it (principally at hospital emergency rooms). Of course nothing is truly free, so hospitals and healthcare providers pass on the cost in higher fees and premiums to those who do pay. As such, those who do not buy insurance shift the costs of their care to the rest of us, increasing the average insured family's costs by about $1,000 per year. So unlike the markets for broccoli, health clubs and cellphones, this is not a market anyone can truly avoid, and doing nothing ends up harming others by shifting one's own costs to those who carry insurance.
Given those realities, to uphold this law would not give Congress unfettered power to require us to eat granola, purchase electric cars or join health clubs. Participation in the markets for those products is not inevitable, nor does one person's choice not to purchase such products impose substantial and foreseeable costs on others because he will be able to get the product for free even if he doesn't buy it. Upholding the individual mandate would simply establish that where a national market is the victim of such a free-rider problem, Congress may address it as part of its general authority to regulate that market.
The concerns voiced by the conservative justices seemed to suggest that they are bothered by something other than the scope of Congress's Commerce Clause power. Justice Alito and Chief Justice Roberts both seemed troubled that the law requires healthy people to subsidize unhealthy people, by compelling the young and healthy to buy insurance that they might not use (at least not immediately). But that is, of course, the whole point of insurance, and nothing in the Constitution forbids redistribution of resources or collective sharing of burdens. Federal laws protecting workers from exploitation by employers redistribute benefits from employers to employees, but that is no basis for barring Congress from enacting such laws.
Moreover, as Justice Ruth Bader Ginsburg pointed out, Congress requires us to pay for Medicare or Social Security, even if we think we won't need it and can cover our costs through the private market. There would be no conceivable constitutional objection to a single-payer plan, in which the government itself collected the fees and provided insurance, as it already does with Medicare. If Congress can do that, then the objection that this law has redistributive effects cannot stand as a legitimate basis for invalidating Obamacare.
Justice Kennedy asked whether the law should be required to meet a higher burden of justification because it "fundamentally alters the relation between the government and the people." As he explained, tort law generally does not place affirmative duties on people, for example, to be a "good Samaritan." Yet the individual mandate does impose an affirmative duty to buy health insurance. But it is not clear that Obamacare in fact fundamentally alters government-citizen relations. Federal laws impose numerous affirmative duties on us, including the obligation to pay taxes, to register for selective service, to provide safe working conditions for one's employees and to provide information about ourselves if we seek to travel by airplane. Nothing in the Commerce Clause forbids affirmative duties.
Of course, the fact that the conservative justices' concerns are not supported by the text or doctrinal history of the Commerce Clause does not preclude five of them from using that clause as a vehicle to express and enforce their concerns. That is precisely what the Supreme Court did in the early twentieth century, when a conservative Court repeatedly invalidated progressive labor laws on Commerce Clause grounds, even though its actual objection was to any government regulation of the "free market" at all. But that path was a disaster, and was abandoned in the wake of the New Deal. Invalidating Obamacare would require nothing less than a revival of that long-rejected approach.