Alexandria

The first of three days of oral arguments begins today in Department of Health & Human Services v. Florida, the ObamaCare mandate case. The blogging world is abuzz with talk of whether the mandate is authorized under the Interstate Commerce Clause, which is understandable because it’s an intellectually interesting issue. But, there are more issues in the case, so let me run through what I think are the four central issues in the case.

To start, here is the “Question presented” before the Court:

Beginning in 2014, the minimum coverage provision of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029, will require non-exempted individuals to maintain a minimum level of health insurance or pay a tax penalty. 26 U.S.C.A. 5000A.

The question presented is:

1. Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision [individual mandate].

This is a legal question that strikes a personal chord, because I got burned on a law school exam for failing to address it in an essay. Constitutional Law was the final grade I received in my first year of law school. I had a 4.0 up to that point, but received a B+ in Con Law. I talked to the professor, and where I lost points was on a question dealing with the constitutionality of a hypothetical statute enacted by Congress. In my essay I neglected to discuss the constitutional authority for the statute—precisely what the Court will discuss this week—and one sentence could have turned the B+ into an A.

Anyhow, I agree with Professor Somin that this is not an easy case, in spite of what people on both sides are saying. Intuitively, many conservatives and libertarians may think that affirming the 11th Circuit’s holding that the mandate is unconstitutional is a “no-brainer,” but let me assure you it is not. Ditto for defenders of the law. Based on existing precedent, this case is really, really hard.

The reality is that there are a number of issues here. I want to run through some of the key issues quickly because this may be a case that has a surprise ending. I don’t want readers to be taken off guard if that happens.

Standing

For those unfamiliar, the threshold issue is what is known as standing. Basically, a party has to have suffered an injury before a court can deliver a remedy. In other words, you can’t sue on someone else’s behalf, or preemptively. You need to have suffered an injury.

So far the courts have breezed past this issue in the ObamaCare case. But there are three different sets of plaintiffs in this case—states, private companies, and individuals. The 11th Circuit didn’t address the standing of the states or private companies, because the federal government conceded that one individual plaintiff, Mary Brown, had standing. That would make it seem as if standing will not be an issue.

The problem is standing cannot be “waived.” You need to have standing for a court to have authority to hear a case. That the parties agree that a court has authority does not make it so. Thus, the question is whether Mary Brown has been injured by the individual mandate, also called the “minimum coverage provision.” Since the mandate hasn’t gone into effect, it’s hard to say that she has. So it should come as no surprise that the Court has dedicated most, if not all, of today’s arguments to the issue of standing.

But, does the Supreme Court really want to kick the can down the road for two more years? Practicality may prevail.

Tax Power

The Interstate Commerce Clause arguments have gotten most of the press, and for good reason. So far no court has held that the individual mandate is defensible under Congress’s Tax Power, and all have found it to be a penalty. But the federal government has continued to make the Tax Power argument, and if the Court spends much time with this justification for the mandate, it will be a bad sign for ObamaCare opponents.

Interstate Commerce Clause

The federal government maintains that the individual mandate is authorized under the Interstate commerce Clause, while opponents maintain that it is not. This is the issue most of the pundits have been chattering about. But while it may seem like a no-brainer to libertarians and conservatives that the mandate is unconstitutional, and to liberals that it is constitutional, based on existing precedent this is a very tough question.

During the Rehnquist years, the Court took some baby steps to curtail Congress’s authority under the Interstate Commerce Clause, with the Morrison and Lopez decisions. But when the Court decided 8-1 in the Reich decision (written by Scalia, no less) that the ICC gave Congress authority to regulate home-grown marijuana, it became clear that the Court will only place de minimus boundaries on Congress’s Interstate Commerce authority.

It is a standard rule of construction that no clause in a statute, contract, or constitution should mean either everything or nothing at all. The ObamaCare mandate case may well turn on whether the government can place a meaningful limit on Congress’s authority to compel market participation. If it can do so, the court will likely have a hard time striking down the mandate.

In other words, are the states correct when they argue that “the individual mandate is an unprecedented law that rests on an extraordinary and unbounded assertion of federal power?” The key word is “unbounded,” not unprecedented.

In the end, I think The Wall Street Journal got it correct today that the odds are in the government’s favor. The four far-left Justices are likely to affirm the mandate as authorized under the ICC, if the case isn’t decided on other grounds. The one centrist, Justice Thomas, is likely to come to the opposite conclusion. If so, the plaintiffs are going to have to convince all four members of the center-left bloc that the mandate is unconstitutional. That is going to be tough if the federal government can demonstrate that this case will not open the floodgates to all manner of marketplace compulsion.

Severability

This is a bigger issue than the punditry gives credit. Severability is whether a given portion of a statute can be invalidated without striking down the entire statute. The trial court held that the individual mandate was not severable, and struck down the entire law. As I wrote last August, the 11th Circuit held that the mandate was indeed severable, and held that the mandate was unconstitutional, but that the rest of the bill could stand on its own.

The issue of severability will only come into play if the mandate is held unconstitutional. But, if the four center-left Justices can be convinced that it is, severability will become an enormous issue.

Final Thoughts

Do not be surprised if this case doesn’t have a surprise ending, such as the Court holding that the case isn’t ready to be heard since no one has been injured by the mandate yet. After all, most, if not all, of today’s arguments will be on that very issue.

But, if the case is decided on the merits, the case may well turn on whether the federal government can show that affirming the mandate will not grant Congress the power to force people to “eat broccoli,” as the argument has gone. If the government can provide the Court with a way to make this a one-off case with little value as precedent, the mandate probably stands.

This article is also published at The Country Thinker.

Tags: Obamacare Mandate, Supreme Court