The legal professoriate and commentariat are completely unhinged over the impending demise of the individual mandate, the conservative justices supposed infatuation with Tea Party nostrums (see, e.g., Charles Fried’s pathetic tut-tut), and General Verrilli’s supposedly incompetent defense. So let’s go to the transcript and try to explain this one more time, in terms that even the Harvard crowd may be able to comprehend.
The government’s entire defense was in shreds with the Court’s first question, from Justice Kennedy: “Can you create commerce in order to regulate it?” (Tr. at 4). The answer to that question is “no,” and it comes directly from the Constitution: the power to regulate is not the power to create or compel. If you answer “yes” or “that’s not what’s going on here,” you had better come up with some other principled limit to the commerce power; otherwise, in the Chief Justice’s words, “pretty much all bets are off” (Tr. at 43). Despite persistent prompting from the justices, General Verrilli could not identify such a line, because it cannot be done.
Go to the other side: the difference between proscription and prescription, between prohibition and compulsion, is fundamental. It is, as Justice Kennedy noted (Tr. at 31), fundamental to tort law. It is, as the Institute for Justice noted in a fine amicus brief, fundamental to contract law. It is fundamental to any liberal legal order, including the order established by the United States Constitution. It is the difference between preempting states, which is specifically authorized by the Supremacy Clause, and commandeering them, which is verboten, see Printz v. U.S. It is the difference between the commerce power, which Congress possesses, and the police power, which it lacks.
Put differently: unlike Wickard and Raich, this case isn’t about the substance of what constitutes “commerce” (of course health insurance and care are commerce, and of course the regulation thereof can encompass things that aren’t themselves commerce). It is about the form in which government exercises its powers. You can say that the commerce power to regulate doesn’t encompass the power to compel; or you can say (as Justice Scalia would probably prefer, Tr. at 27) that a prescriptive exercise of the commerce power isn’t “proper.” It’s the same line either way.
Time and again, Paul Clement and Michael Carvin came back to that line; time and again, they hammered the justices’ questions out of the ballpark. Yes, Justice Breyer: the government may promote commercial activity (under its spending and other powers) and establish a Bank of the United States. But no, it may not compel citizens to put their money into that bank (Clement—Tr. at 63 ). No, Justice Kagan, I’m not trying to sell you on a phony activity/inactivity distinction that smacks of the old, discredited distinctions between “commerce” and “manufacture” and which isn’t in the Constitution; my line is between the commerce that is and the commerce that isn’t, which is in the Constitution. It’s the government that is hawking a “bogus” distinction between (“unique”) health insurance and other industries, and good luck with that (O-tone Carvin, Tr. at 106).
Come July, there will be wailing and howling over the “conservative activists” who stop at nothing to enact the Tea Party’s Constitution. This is calumny, and it is idiocy. The plaintiffs had no coherent constitutional theory on severability and on Medicaid. For that reason they will lose on both issues, and all the partisanship on the Court, real and imagined, won’t help them. Conversely, the justices gave the government every chance in the world to draw a constitutionally grounded enumerated powers line. It couldn’t, and so it will lose. The plaintiffs could and did, and so they will win.
Sure, politics enters into it. But enters into it on both sides of the ideological divide; and in any event, it always does in constitutional matters. The Founding debates were intensely political. Still, we find no difficulty in saying the proponents of the Constitution triumphed because at the end of the day, they had a compelling argument and their opponents didn’t. So now.