Why I Still Think The Health Care Mandate Will Survive Just Fine

If Twitter was any indication, yesterday was a rather traumatic experience for supporters of ObamaCare. By all accounts Solicitor General Donald B. Verrilli Jr. — the man charged with defending the law to the Supreme Court — got trounced during oral argument concerning the mandate’s constitutionality. I spent most of the day tweeting that I thought this was a bunch of hand-waving over nothing too terribly important, so I figured I’d organize my thoughts as to why.

1) The Underlying Structural Forces Haven’t Changed

Nothing new happened yesterday. The nature of the arguments for and against didn’t change, no hitherto unknown information was brought forward, and no great revelation was in the offering — other than the realization that even one of the top lawyers in the land can get stage fright. The justices have been inundated with briefs on the issue for months, and will continue mulling the matter over with their staffs and with each other, most likely until the end of June. Yesterday’s oral arguments were a mere two-hour chunk of a much, much longer deliberative process. It’s the chunk where the actual intellectual substance of the arguments is at its lowest ebb of influence, while the subjective public performance of the two sides’ lawyers is at its highest ebb of influence. It also happens to be the chunk of the process most visible to both the public and the media.

In other words, the circumstances conspire to trick everyone into vastly overestimating the oral arguments’ import. For the Right to gleefully crow over yesterday’s deliberations, or the Left to wring its hands in trepidation, is no different from both sides doing the same over that recent Washington Post / New York Times poll showing a dip in Obama’s favorables. That poll might have been dramatic in the moment, but it did not make for a trend. This and this were the trends, and there’s no evidence they aren’t still headed in Obama’s favor. I see no reason to think the same basic perceptual phenomenon isn’t going on here.

2) The Underlying Strength of the Argument Hasn’t Changed

The relevant text from the Constitution concerning Congress’ power reads, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” as well as, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

You read anything in there about a distinction between economic activity and inactivity? Yeah, me neither. As economists keep telling us, there is no functional difference between penalizing someone with a tax for inactivity, and rewarding them with a tax credit for activity — and everyone agrees the latter is constitutional.

There is no conceivable world under which health care, which is a healthy piece of the entire national economy, does not fall under “commerce among the several states.” No one is arguing Congress doesn’t have the power to establish guaranteed issue or community rating, the regulations which prevent health insurers from turning people away due to pre-existing conditions and from screwing the sicker among us out of decent coverage. Without the mandate also in place, the health care market collapses under those regulations because people can wait until they get sick to buy insurance and thus bleed insurers’ coffers dry. So the mandate is necessary to carrying out the other legitimate regulations. Boom. Done. Verrilli actually made this argument yesterday, though the poor man’s syntax was garbled to the point of incomprehensibility.

I have no doubt Thomas will rule against the mandate, but he’s nuts. Scalia cannot rule against it without betraying his own logic in Raich. Kennedy, Roberts and Alito have hemmed themselves in with various rulings as well. I realize that assumes the conservative justices on the Court still care about their honor and intellectual integrity. Perhaps that assumption is a mistake, and they’re ready to strike down the mandate in the name of out-and-out ideological warfare. But I doubt it, and the reason is…

3) The Underlying Politics Haven’t Changed

Dahlia Lithwick did an excellent job laying this case out, which in a nutshell goes as follows: Between their recent public speeches, books, and individual publications, the Justices on the Supreme Court have been signaling unusual sensitivity to perceptions of the Court’s legitimacy and integrity. They’ve already suffered backlash over both Bush v. Gore and Citizens United, the latter of which is still a particularly raw political wound. This is not a Court that enjoys a high level of public trust, or has a lot of political capital to spend. It’s staring down a coming session that is replete with divisive cases on immigration, affirmative action, and voting rights — the health care reform case is just the start of it. And this is all hitting the Court smack in the middle of the heightened partisan environment of the 2012 elections.

The mandate is not popular, but the public is also profoundly cynical about the Court’s motivations — recent polling shows a whopping 75 percent of Americans expect political ideology, not jurisprudence, to drive the Court’s decision on the mandate. A 5-4 split on a case this high-profile will do nothing to alleviate that. The opinion of elites and the Justices’ peers also matter, and they know how far out on a limb the conservatives must go to strike the mandate down. So like Lithwick, I suspect the unusual amount of time allocated to the arguments, and the grilling the pro-mandate side received yesterday, were much more about optics than an indication of the Justices’ actual positions. On the one hand, they need to reassure the public at large of their nonpartisan seriousness, and on the other they need to give the conservative base a good show before disappointing them by upholding the mandate.

Alito and Roberts aren’t Tea Partiers, which is where the emotional core of the Right’s opposition to ObamaCare lies. My sense is that neither of them hold health care policy particularly near and dear to their hearts. Being Chief Justice also leaves Roberts especially sensitive to the Court’s reputation, and eager to solidify a large majority. Kennedy can be prickly and libertarian, but he’s also something of the swing “wild card,” and that kind of unpredictability can break in either direction. (Though I actually think Kennedy’s more likely to rule against the mandate than most of the other conservatives.) Meanwhile, Scalia has boxed himself in intellectually with Raich.

So even if the conservatives can’t be relied upon to defend the mandate on its considerable legal and Constitutional merits, there’s still plenty of reasons for them to decide this just isn’t a hill worth dying on.

In Conclusion…

Obviously, I have no expertise in this area. Come the end of June, I could totally be eating my words. (Another reason I’m writing this is so that, if I am wrong, I’ll have a written record to go back to for my own edification.)

But the point is this: Months ago, in the cold light of day, long before the oral argument drama was upon us, liberals sized up their argument, the text of the Constitution, court precedents, past decisions, the personalities of the judges, their ideologies, their intellectual histories, and the political environment surrounding the Court, and concluded they had this sucker in the bag. Those were all good reasons to come to that conclusion. They were why 85 percent of legal experts polled by the American Bar Association concluded the Supreme Court would uphold the mandate, and why nine of the twelve appellate court judges who have reviewed the mandate so far (including three well-respected conservatives) ruled it constitutional.

None of that changed yesterday. All that occurred was the man charged with publicly defending the law gave a poor performance. Such things happen. The Justices aren’t going to rule based on it. So I’m sticking with my previous prediction: Mandate is upheld by at least 7 to 2.

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