Solicitor General Donald Verrilli, as many commentators have remarked, had a terrible time of it today. He was, from a human standpoint, nervous at the onset. But it is wrong to personalize this. His argument was inadequate, as the Obama administration’s legal justification has been from the beginning. The government could have had a much more experienced solicitor general up there, and the result would have been exactly the same.
It’s not surprising that liberals, most of whom have not read or shown interest in the arguments of the challengers, were stunned to learn that there really is a constitutional difference between taxing and regulating and between inducing one into commerce and regulating commerce that already exists. It is this failure to understand, let alone imagine that constitutional text has meaning and there are actual limitations on federal power, that explains the stunned reaction of the liberal elite. Like puppies smacked on the nose by a rolled-up copy of the Constitution, they are flabbergasted.
Todd Gaziano and Hans von Spakovsky of the Heritage Foundation write:
The Solicitor General’s chief problem throughout the arguments was that he was unable to give a clear, simple, and easily understood answer to this question: If Congress has the power to compel the purchase of an insurance policy from a private company, what limiting factor is there on congressional power under the Commerce Clause? He was asked that same question more than once by different justices and never came up with a reasonable or principled constitutional distinction. Justice [Antonin] Scalia admitted that he came up with distinctions, but denied they were based on constitutional principles.
Consider some of the interchanges with the justices. At the onset, Justice Anthony Kennedy asked Verrilli, “Can you create commerce in order to regulate it?” The solicitor general insisted that’s not what the government was doing. But then Scalia and Chief Justice John Roberts pounced. Roberts asked, “So can the government require you to buy a cell phone? Because that would facilitate responding when you need emergency services. You can just dial 911 no matter where you are.” Verrilli said it wasn’t the same, insisting that health care is a “market.” But so are other goods and services. This sort of fencing went on throughout the morning. When Justice Samuel Alito asserted that there was a market for burial services, so perhaps Congress could force us to buy insurance for that too, Verrilli answered once again, “That’s different.” But it’s not, you see.
The conservative justices, no doubt having read some works on market economics and the briefs of the challengers, had the solicitor general on the ropes. In trying to make a distinction between food and health insurance, Verrilli ran into this from Scalia: “Is that a principle basis?. . . Is it a basis which shows that it is not going beyond . . . the system of [what] enumerated powers allows the government to do?”
The idea that Congress could accomplish its goal some other way, by taxing or regulating insurance at the point of usage, was brushed aside by Kennedy: “If the Congress has alternate means, let’s assume it can use the tax power to raise revenue and to just have a national health service, single-payer. How does that factor into our analysis? In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since . . . Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.” It was plain from his badgering of Verrilli which side of that argument he favored.
And in an irresistible tidbit (at least for those looking at the effort to distinguish Romneycare from Obamacare), the chief justice lectured the government on the difference between states and the federal government: “The key in Lochner (a New Deal case finding that regulation violated substantive due process under the 14th Amendment) is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits in the Federal power, as opposed to limits on the States, which was the issue in Lochner.” There’s some legal clarity for you.
When Paul Clement came up to bat for the challengers, he knew where Kennedy was heading. Clement began: “May it please the Court. The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce. The Commerce Clause gives Congress the power to regulate existing commerce. It does not give Congress the far greater power to compel people to enter commerce to create commerce essentially in the first place.” And that, I suggest, has been the nub of the government’s constitutional problem all along.
In response to relatively ineffective questioning by the liberal justices, Clement patiently explained again and again that prior Commerce Clause cases didn’t force individuals into a web of regulation, and that if Congress could have approached the problem differently — well, then that would be another case for another day. The liberal justices seemed disadvantaged by a failure to understand that markets exist for all sort of goods and services. (Clement, with unintentional hilarity, gravely explained to Justice Elena Kagan: “My unwillingness to buy an electric car is forcing up the price of an electric car. If only more people demanded an electric car, there would be economies of scale, and the price would go down.” Ouch.)
As Michael Carvin put it for the challengers, the issue isn’t whether non-participants affect the health-care market tangentially. If the government, said Carvin, “has that power, then they obviously have the power to regulate everything because everything in the aggregate is statistically connected to something that negatively affects commerce, and every compelled purchase promotes commerce.” Boom.
The administration better spruce up its severability arguments. It will need them to save what is left of Obamacare after, in all likelihood, the individual mandate goes by the wayside.