Written by Winston P. Nagan   

The Supreme Court is currently hearing arguments in the case of Department of Health and Human Services v. Florida. It is probable that the most eagerly anticipated argument was the one that occurred on Tuesday, March 27. This aspect of the hearing focused on the question of the individual mandate, required in the passage of the affordable health care. It is difficult to get a firm grasp on how the judges are leaning in this case. Super realists would say that whatever the official law in the text of the constitution and the precedents of the Court, this case is before the court because the law may well permit a decision to go one way or the other. And that might suggest that an element of human, possibly subjective orientation, may well influence how particular judges will cast their votes in this case. Here, such factors as culture, class, crisis, or fundamental personality orientation, may well be as important as the technical and analytical deconstruction of the rules and precedents. Outside observers, therefore, may seek to get a clue as to the problem of the law on the books and the legal texts and the law in action as we see the advocates and the judges exchange views on the questions that the judges frequently initiate in order to clarify their understanding of the points made in oral advocacy as well as their own understanding of what professionally the law requires.

In this case’s arguments, the government’s position was represented by a very able Solicitor General, Verrilli. His job was to explain the gist of the legislation and its policy importance as a federal legislative initiative. His initial remarks stressed the idea that health care is an important “fundamental and enduring” national problem and a particular problem for our national economy as well. He then stressed the role of insurance as the primary means by which we pay for health care. He added that 80% of the American people have health care insurance coverage. He reminded the court that 40 million Americans have no coverage at all. And those 40 million uncovered citizens have to approach the insurance market which cannot provide affordable insurance coverage.

The Solicitor General did not explicitly state in his introductory remarks that the system of health care in the U.S. is significantly privatized via the insurance market, and partially socialized in the narrower context of Medicare and Medicaid. The problem that congress sought to address was essentially a political one. It did not want to diminish the private sector insurance role in the financing of health care services. It therefore sought to avoid the prospect of abolishing insurance for a single payer universal system. It therefore opted politically for a form of regulating the health care insurance industry and an approximate universal access to it by requiring all citizens who have the economic means to purchase health care insurance. The economics of this approach are complex because there is a clear uncertainty as to whether Congress is regulating a market or creating one. This is certainly a matter that seems to seriously concern the conservative judges on the court. As an abstract matter, there are enough facts in the background to stipulate that Congress is simply regulating a market. If the mandate to purchase is carefully analyzed, it is simply Congress expanding or enlarging a preexisting market, which it is regulating. However, the conservatives considered that since there are no direct, unqualified precedents, which implicate Congress in creating markets as a distinct from regulating them, there is a serious question as to whether a federal authority of limited enumerated powers has gone beyond the explicit limitations of the powers the Constitution gives to the legislative branch of government.

As an observer of this exchange, this represents a curious decontextualization of the problem that Congress was confronted with and sought to solve. One of the conservative Justices suggested early on that this is a problem that the Congress should have confronted “directly”. According to Justice Scalia, this seems to suggest a Congress that was not entirely honest with the electorate. It may be that the choice of method to solve a problem legislatively may reflect the complexities of political compromises. This may be an illustration. Justice Kennedy was particularly concerned about whether Congress had the power to “create commerce” in order to regulate it. In this sense, the Congress, in a reverse bootstrap motion, had created something out of nothing and then bootstraped it into a regulatory standard under the commerce clause. Here again, the tunnel vision conservative orientation indicates a skill in the avoidance of the specific political problems that Congress sought to legislate.

One of the chief concerns of the court’s conservatives is the problem of specifying the constitutional limits on federal legislation. There is a consistent echo that federal authority is constitutionally limited whereas under the 10th Amendment the powers of the states and the peoples are not limited. Here, the tone of the judges seems to resurrect the discourse about whether this nation should have had a con-federal Constitution. In any event, the effort is made to suggest that the limited powers given to Congress in Article 8 and the residual sovereignty powers given to the states in Article 10 may by interpretation with dexterity to change the nature of the constitution to approximate a con-federal model. One can only hope that this case will not be the vehicle that drives our nation in that direction.

The question of the notion of the markets and the commerce clause was a matter of considerable concern to the conservatives. Essentially, the justices were searching for a more limited concept of the market that could be read into the health care mandate and by implication declare the power to regulate the insurance aspect of the mandate to perhaps be beyond the scope of the commerce clause. One stratagem here is to work on the idea that acorn is not dissimilar to an oak tree. Thus, for Justice Scalia there was the concern that the federal government may require you to purchase broccoli. This “broccoli metaphor” was off course designed to ridicule the statutory scheme created by Congress. Justice Roberts moved in this direction but somewhat more cautiously. According to Roberts, if there were a market for “emergency services: police, fire, ambulance, roadside, whatever,” would the government require every citizen to purchase a cell phone for emergency services. Justice Alito approached the issue with “black humor”. Does upholding this mandate then permits the government to insist that we carry burial insurance? The judges spent considerable time on these “slippery slope” hypotheticals. The appropriate answer to this line of questioning should have been that “we are not litigating broccoli, cell phones, or burial practices. The focus of our arguments is case-specific with regard to the specific issue before the court, which has been appealed. These other issues have almost nothing to do with the facts and the health care crisis of 40 million uninsured Americans.” One hopes that the specific context of this legislation will not be lost on the thoughtful conservatives on the court. After all, it is a Constitution that the judges are expounding.

Justice Kennedy raised the concern that tort law does not impose an obligation to act for the benefit or safety of another. The implication being that, this legislation by requiring a mandate repudiates the common law limitation on moral obligations with regard to acts or omissions. Legal theorists have long suggested that comissive and omissive behaviors are simply forms of conduct. And there is nothing magical about requiring someone to act reasonably in circumstances in which omissive conduct is clearly unreasonable. It is possible, as Justice Kennedy himself acknowledged, that this common law rule has been criticized for furthering moral depravity. Clearly the omission to purchase health care, which economic circumstances suggest is affordable, has moral implications in passing the cost that must ultimately be expended on the person who omitted to insure, on the rest of the population.

One important point may by Justice Scalia is that the court should emerge with a coherent and articulate objective constitutional principle to uphold the law, and which clearly explains the appropriate limits of the commerce clause. In my view, this is not an intellectual mystery. Hopefully, the court will see its way through a thicket of its own creation and, as many conservatives insist, will bring common sense to the court and hopefully uphold the law. After all, the individual mandate is a quintessentially republican idea.