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Roberts to the Rescue; Ginsburg the Great

June 28, 2012

The common wisdom was that the five Supreme Court conservatives would toss out the Affordable Care Act.  The question was, would they gut it by voiding the individual mandate, or would they throw the whole thing out.  To the surprise of the conventional wisdom, the Supreme Court upheld the law almost in its entirety.

The case generated four opinions, three of which must be read in order to understand all of the aspects of the court’s conclusions.  (As is not uncommonly the case, Justice Thomas’s opinion can be skipped without the loss of any understanding.)

The commentariat was surprised that Chief Justice Roberts voted to sustain the law, but his questioning of the lawyers during the oral argument should have given commentators pause.  Roberts’ questions seemed to be intended to understand the rationale behind the law.  Unlike, say, Justice Scalia, Roberts didn’t seem to be looking to vindicate a pre-existing opposition to the law.

The centerpiece of the Affordable Care Act is the individual mandate.  If healthy people can opt out of the health care market, health care premiums are higher for everyone else.  Much of the law is organized around the idea that if most Americans have health insurance coverage, the cost of coverage for everyone goes down.

When Republicans like Mitt Romney were in favor of the individual mandate, it was called “personal responsibility” – a person who would benefit from health care in an emergency should not be able to shirk responsibility for insurance premiums while that person is healthy.  But of course when President Obama adopted the idea, it became a socialist takeover of health care.

A five-to-four majority of the justices rejected the federal government’s claim that the individual mandate is authorized by the Constitution’s Commerce Clause.  Roberts joined his fellow conservatives on this point.  But Roberts joined the four liberal justices in accepting the government’s back-up argument that the individual mandate is authorized by the federal government’s taxation power.

My first-day reaction to the four opinions is that Justice Ginsburg’s is the one that will gain the acclaim of history.  Her opinion is a magnificent piece of constitutional reasoning, and I predict that it will come to be regarded as a signature work, like Justice Holmes’ dissent in Abrams v. United States, or Justice Brandeis’ dissent in Olmstead v. United States.

Justice Ginsburg agreed with Roberts that the individual mandate was within Congress’s power of taxation, but she argued that it was also authorized by the Commerce Clause.  Her argument of the point is vigorous, thorough, and carefully grounded in history and precedent.  She compares the conservatives’ “crabbed reading of the Commerce Clause” to that of the reactionary justices who voted to invalidate New Deal measures in the early 1930s.  She explains in clear and compelling terms the effect on commerce of an individual’s decision not to buy health insurance, and the important economic reasons that a state-by-state solution won’t work.  She explains why Congress followed the approach taken by Mitt Romney with the Massachusetts health care law.  Justice Ginsburg concludes, correctly I think, that straightforward application of historic principles would lead the Supreme Court to uphold the individual mandate as a legitimate exercise of Commerce Clause power.

Justice Ginsburg then turns to a critique of the conservatives’ reasoning in reaching the contrary result.  She starts with a review of the “multiple flaws” in the contention that the individual mandate is invalid because it compels rather than regulates commercial activity.  She reserves her strongest condemnation for the canard that compelling the purchase of health insurance is like compelling the purchase of broccoli.  Almost everyone will require health care at some point; there is no certainty that a person will ever buy broccoli.  “And if she eventually has a craving for broccoli, she will be obliged to pay at the counter.  There is no free food, at the expense of another consumer forced to pay an inflated price.”

Thus the distinction between people who have health insurance and therefore participate in commerce, and those who lack health insurance and therefore do not participate, is “formalistic” – one of the strongest condemnations in the judicial vocabulary.  Perhaps Justice Ginsburg’s only stronger condemnation is her direct quotation of the conservatives’ own language.  The conservatives opine that sustaining the individual mandate via the Commerce Clause would make the Commerce Clause a “hideous monster whose devouring jaws spare neither sex nor age, nor high nor low, nor sacred nor profane.”  Such a Commerce Clause would melt the polar icecaps, explode the nuclear family, and pull the plug on Grandma.

Finally, Justice Ginsburg turns to the broccoli analogy, which she ruthlessly mocks as “the broccoli horrible.”  Having shown that the analogy is inapt, she seals its coffin with this observation.  Hypothetically compelling the purchase of broccoli would be intended as a solution to the problem of the consumer’s unhealthy diet.  But making people buy broccoli would not directly solve that problem.  People who are forced to buy broccoli might throw it away, or give it to people who actually like broccoli; or they might deep fry it in unhealthy oils.  (Broccoli fondue, anyone?)  The “vegetable-purchase mandate,” Justice Ginsburg acidly observes, would not directly resolve the unhealthy diet problem.

By contrast, where the problem is that healthy Americans have no incentive to buy health insurance, the individual mandate directly solves the problem.  With the individual mandate, there is no need to indulge the “chain of inferences” that the broccoli horrible requires.

With the Supreme Court tossing out most of the Arizona “papers please” law on Monday, and upholding most of the Affordable Care Act today, it has not been a good week for Obama-haters.

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