Constitution Daily

Smart conversation from the National Constitution Center

Is the health care mandate on life support?

March 28, 2012 by Lyle Denniston


Editor's note: The Supreme Court’s three days of hearings on health care end today. The audiotapes of those hearings, and the written transcripts, will be available later in the day on the Court’s own website,

Photo via Wikimedia Commons. Courtesy of DonkeyHotey.

The centerpiece of the new federal health care law, and its most controversial part – the individual insurance mandate – looked to be doomed after the first hour of the Supreme Court’s hearing on it Tuesday. But it seemed to rally in the second hour, and, while not exactly assured of being upheld, had conspicuous signs of new life.

When the Court’s most conservative Justices started the hearing with a barrage of very hard questions for the government’s lawyer, Solicitor General Donald B. Verrilli, Jr., those in the courtroom started focusing on Justice Anthony M. Kennedy, to see whether he would join in.

And, in fact, Kennedy seemed as skeptical as Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Samuel A. Alito, Jr. If, as everyone assumes, Justice Clarence Thomas, a sturdy foe of broad congressional authority, voted against the mandate, he and those four could make a majority for a 5-4 result.

Kennedy seemed to have picked up on one of the key arguments by the mandate’s challengers: the provision was not a form of regulating existing economic activity, but was in fact a form of coercion for individuals without health insurance to enter for the first time into economic activity over their objection.

Starting with the assumption that the mandate was “a step beyond what our cases have allowed,” Kennedy told Verrilli that it would change “the relation of the individual to the government in this…unique way.” Thus, he said, Verrilli had a “heavy burden” to justify it.

Later on, Kennedy repeated his concern about changing that core citizenship relationship in a “very fundamental way.” It was not apparent that the Solicitor General, in his responses, had given the “justification” that Kennedy was seeking.

But the atmospherics of the argument changed markedly when two Washington lawyers representing the challenging states and private parties, Paul D. Clement and Michael A. Carvin, took their turns. The Court’s more liberal members – and especially Justice Stephen G. Breyer – took up a fervent defense of the mandate as necessary to deal with the national problem of having nearly 40 million Americans without an assured way to pay for their health care, which Breyer said was burdening the entire health insurance market.

Breyer was joined, but with a little less passion, in that defense by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, thus indicating that the mandate did have champions on the Court – but only four in number. Only if they could draw Justice Kennedy to their side, it appeared, might they prevail.

The changed tone of the hearing may have had some impact on Kennedy. The next time he expressed his “concern” it was not about the threat to the citizen-government relationship. In a notably softer voice, the Justice said that “most questions of life are matters of degree.” That was an indication, it seemed, that he was developing some flexibility in analyzing the issues surrounding the mandate.

Young and healthy Americans, Kennedy then observed, could, if they have no health insurance, be in a position that was “very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” The claim that Congress could do what it did with the mandate because the health insurance industry was unique was a basic argument that Solicitor General Verrilli had made. If Kennedy was now seeing that health care financing is different, his vote might well be available for the mandate.

Although there is no hard evidence to support the notion, it is widely believed that, because of the importance of the health care debate in the Nation, Chief Justice Roberts would not want the Court – if it could be avoided – to decide the mandate’s fate on a thin 5-4 vote. Thus, if Kennedy wound up casting a vote for the mandate, there is some speculation that Roberts might well join in.

In fact, in the second hour, Roberts was reciting – for lawyers Clement and Carvin – some of the government’s basic justifications for the requirement. Although he made clear that those were the government’s points, not his personally, he spelled them out in a way that did not sound as skeptical as he had seemed in the first hour.

The result, though, is not likely to be known until the Justices release their ruling on the mandate, and other issues surrounding the new Affordable Care Act, probably late in June.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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