Apologies in advance to everyone who's ready to move on to some other topic already... although for the life of me I can't see how that's possible. For the few lost souls like me who still want to play, here's my best argument for the constitutionality of the individual mandate, followed by a bit of gaming out the summer to see if we can't predict how different rulings might play at the conventions and going into November.
Jordan's Amicus for the Individual Mandate
Like most pro-reform people, I view the mandate as a split-the-baby half measure designed to get the necessary Blue Dog votes in Congress. The United States has the most idiotically expensive and bass-ackwards health care system on the planet, and reform is absolutely necessary. If all we were interested in was providing the best possible care to the most people with the most efficient use of dollars and resources, we'd simply create a Medicare For All system that would cover catastrophic and preventive treatments, with private providers able to offer more advanced/experimental/optional treatments at more profitable rates. But we are not that country.
The government's position on the mandate is basically the right position. They could have stated it more clearly and forcefully in oral arguments, but at bottom it's a rock-solid argument in defense of the mandate.
Randy Barnett's active/passive distinction, while it has logical and practical problems of its own, is nontheless interesting, and I agree with him that a government in which Congress can make us all buy GM cars or health club memberships, simply to help out those markets, is not a government of enumerated powers. But that is not what the individual mandate does.
The active/passive distinction is meaningless in this case because we are all already actively involved in the commerce of health insurance. With the individual mandate, Congress is merely proposing that everyone who is covered by the nationwide insurance system should pay into it. Because Congress is regulating an already-active interstate market, there is no novel power being asserted here, and there is no new Commerce Clause line to draw. The mandate is, in effect, a completely banal and ordinary exercise of Commerce power as it was intended: Congress is setting regulations in an interstate market to make that market fairer and more efficient for all participants.
There's been a lot of confusion over this point, not least among the conservative justices themselves, so a brief explanation. Insurance is like gambling in reverse...members of an insurance risk pool pay premiums in order to hopefully "cover" whoever loses the bet...someone's house burns down, someone's business gets tagged in a liability suit, etc. Actuaries calculate the total likely cost of losses to the pool for a given period of time, and then they divide those total losses among all pool members in the form of premiums, to be paid in advance. You lose a little bit now so that you don't lose a lot later on...that's insurance. Now premiums serve two purposes. One, they cover or hedge the losses of every member of the pool in a highly efficient way (the cost for each individual to self-insure against the same losses would be orders of magnitude higher). But premiums also get turned into claims and actually go to pay for replacement costs to individuals who roll the unlucky dice. Premiums don't simply cover notional losses in the future; they also pay for actual losses in the present. As a policyholder, you are covering yourself in the future, but you're also paying for the losses of other lucky duckies right here and now. The money you pay into a risk pool gets turned around immediately and (minus the insurance company's cut) is paid out in the form of claims to doctors, hospitals, pharmaceutical companies and medical suppliers.
What all of that means is that every single one of us who is currently somewhere within the United States is covered by the hodgepodge, frankenfurter US health insurance system. By law (ERISA), by custom and by cultural preference, doctors and hospital resources are standing by ready to offer you medical treatment regardless of your ability to pay. Hospitals are required to have the staffing and resources on hand to be able to treat every medical emergency or serious illness in their region. They are standing by because someone is paying for them to stand by, and that someone is a combination of taxpayers (Medicare/Medicaid funds) and private insurance policyholders. Doctors' salaries, nurses, medical equipment, hospital rents & taxes, drugs and other supplies are all paid for on an ongoing basis by insurance premiums.
As a result, everyone in the country is insured. But not everyone pays for the coverage they enjoy without knowing it. Everyone is in the risk pool, but not every member of the pool pays their fair share: Congress acted to change that. Now, Randy Barnett and libertarians want us to live in a fee-for-service world, where individuals more or less self-insure and only pay for medical care when they require services. It's an economically terrible approach to health coverage, but aside from that the key point from a legal aspect is that that is not the world we live in. Like it or not, insurance is the prevailing method for covering medical expenses in this country, and if Congress wants to reform the health care market, they have to do it through insurance.
Health Care Spending by Funding Source (2009, in billions)
Insurance, all sources $1,767.4
Public Spending (CDC, etc.) $77.2
Public Investment $156.2
Total "Social" $2,000.8
Total "Private" $485.4
Justices Scalia, Roberts and Kennedy are concerned that, if they allow Congress to compel people to purchase health insurance, there's no limit to what Congress can do. This is a misguided worry. Everyone is not in the automobile market. There is no chance that, in a milk emergency, you will be given a GM car to drive to the store, paid for by strangers. There is no chance that, if you get hungry, you will have a year's supply of broccoli given to you by the good people of your state. You are not in the broccoli market, unless you buy broccoli. You're not in the automobile market, unless you buy a car. But you are in the health insurance market, whether you yourself are a policyholder or not. Someone is providing you with a service...insurance coverage...whether you asked for it or not.
You may not be "actively" paying for the coverage you are receiving, but insurers and medical professionals are "actively" covering you all the same. You are an expense or liability simply by virtue of being alive. Now Justice Scalia would obviously like to dismantle that entire system and go back to the 19th century where all citizens are equally free to die in a ditch if they can't pay for medical treatment; unfortunately for his judicial philosophy, do so would be legislating from the bench on a monumental scale, and it would contravene both Congress and the general consensus in this country which both hold that everyone should have minimum, basic health coverage.
So, looked at this way, there's no need to define the health insurance market as "unique" or to develop a test or bright line separating it from the broccoli, automotive, or health club markets. With Obamacare, Congress isn't forcing you into commerce in order to regulate you...it's forcing you to pay for commerce you're already involved in.
Gaming Out the Election
What conservatives are hoping is that the court will either sever the mandate, or strike down the law entirely in order to set back the "agenda" of trying to reform the US health system. Ultimately for conservatives, the aim is to embarrass the President going into a midterm election. Nevermind that the individual mandate was originally promoted by the Heritage Foundation and championed by all of the primarying conservatives now professing pant-sh%%ting terror at idea. Seems at the moment like there's a slim advantage to the possibility the court will strike down the mandate, but leave the rest of ACA as a giant unfunded hulk.
That would certainly embarrass the President. But how is this likely to play out, politically, over the summer?
The ruling comes out in June most likely. Mitt Romney will still be fending off flavor-of-the-week primary challengers (Jeb Bush! Brokered convention!). The economy will be showing signs of recovery, except for gas prices, and no thanks to a completely inert Republican House, and the Scott Walker election in early June will reheat the war-on-unions polemic nationwide. And then Boom! SCOTUS overturns the President and Democrat majority's key accomplishment (or part of it at any rate). What happens?
Obamacare Overturned. This is what Republicans are hoping for, but I wonder if they'd like the outcome. My feeling is that this would be an explosive ruling that would galvanize both sides going into the election...Republicans think the ruling would mark a huge tidal surge in their direction as the Democrats' landmark, generational reform effort becomes a symbol of liberal overreach. But of course the ruling would also galvanize Democrats and liberals already convinced by Citizens United that the court is corrupt. The Walker recall plus a radical SCOTUS ruling would come as a clarion call for putting an end to the do-nothing Congress and Republican willingness to break the government rather than let Democrats carry out Republican-backed, Heritage Foundation-drafted, Mitt Romney-approved reforms. In Democrats' favor, Republicans will be forced to argue counterfactuals (the Soviet nightmare of paying for national health coverage we already enjoy), while Democrats will be able to point to the rollback 6-8 wildly popular programs that have already helped tens of millions of people.
Mandate Overturned. This is the odds-on favorite at the moment, although politically speaking this too would be fairly explosive. Somewhat less so since a) the mandate hasn't been imposed yet and b) nobody can explain exactly how or if Obamacare will function without it. Confusion makes it harder to rally the troops. I'd say the impact would be a more restrained version of the above: Republican hope for no change will wax ecstatic as the base sees a chance to grab seats in Congress and maybe even throw out the Center-Right President they love to hate. But at the same time, furious Democrats and liberals will be up in arms to put an end to conservative do-nothingism. It'd be interesting to see which way the narrative would go over the summer, as now both parties would be arguing counterfactuals. The insurance industry will be pissed. But the vast majority of reforms -- end of recissions, mandatory coverage, mandatory MLR spending caps, etc. would still be in place. This would be a big story going into the election, but it's hard to say how it would play out.
Judicially, it'd be interesting to see the court's rationale for striking down the mandate. If they buy into Randy Barnett's active/passive distinction, which is essentially a brand new judicial doctrine, expect a wave of challenges to everything from Medicare Part D to ERISA to contracting rules. There's a lot of standing Commerce Clause precedent which will be standing pretty wobblily in the event of a new bright line Commerce test. (Basically, every time Congress compels you to do something under a Commerce power, they are compelling you to do something active that impacts interstate trade on some level, so....)
Obamacare Upheld. This is the 2nd most likely outcome, given the court's historic & institutional unwillingness to become involved in legislation, and given the basic soundness of Congress's reasoning as presented by the SG. Granted, this is largely the same court that handed down Citizens United, Heller, Hamdan et al., and these justices have shown substantial willingness to reign in the executive and the states/municipalities... then again, it's also largely the same court that gave us Bush v. Gore, and so their willingness to hand down a nonjudicial, purely political gimme to US conservatives also has to be considered.
But let's say the court upholds Obamacare, possibly with some new active/passive Commerce Clause test that just barely allows the mandate to survive (and which causes untold headaches down the road as above). How does it play out? Just a pure guess, but I'd say it probably infuriates the far right and libertarians, but leaves the rest of the country more or less uninterested. Another victory in a string of victories for Obama to claim in November. I don't think a victory for the mandate will inspire much passion in the liberal/Democrat/moderate camps, for the simple reason that nobody really likes it all that much. Better Than Nothing! isn't much of a campaign slogan.