In the past, I’ve looked at oral arguments and accurately predicted how the Court would rule. I’m going to do that here:
SCOTUS will strike down Obamacare’s individual mandate.
The transcript and audio of arguments are here. Looking at the transcript, a few things are obvious:
Justices Roberts, Alito, and Scalia will all rule against the mandate. You just have to look at their questions, where they asked the lawyer for the government to distinguish between the health insurance mandate and various other creative scenarios:
Roberts, on emergency services:
Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.
You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will. So, there’s a market there. In some extent, we all participate in it.
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?
Alito, on burial insurance:
Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.
Isn’t that a very artificial way of talking about what somebody is doing?
And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services.
Scalia, on cars:
Mr. Verrilli, you could say that about buying a car. If people don’t buy cars, the price that those who do buy cars pay will have to be higher. So, you could say in order to bring the price down, you’re hurting these other people by not buying a car.
And it’s safe to say that Justice Thomas will rule against Obamacare.
So, as usual, it all comes down to Justice Kennedy.
The most telling fact about Kennedy is that he had many questions for the government’s lawyers, and almost none for the states. And his questions were very skeptical about the scope of the mandate.
Here are Kennedy’s questions for the government:
JUSTICE KENNEDY: Can you create commerce in order to regulate it?
JUSTICE KENNEDY: Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?
I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?
JUSTICE KENNEDY: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?
JUSTICE KENNEDY: But why not? If Congress — if Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis.
JUSTICE KENNEDY: I’m not sure which way it cuts, if the Congress has alternate means. Let’s assume that it could 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 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 the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.
JUSTICE KENNEDY: But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.
And here are Kennedy’s (much softer) questions for the states:
JUSTICE KENNEDY: Is the government’s argument this — and maybe I won’t state it accurately. It is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks. That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?
JUSTICE KENNEDY: But they are in the market in the sense that they are creating a risk that the market must account for.
And finally, this exchange between Kennedy and the lawyer for the National Federation of Independent Businesses:
MR. CARVIN: It is clear that the failure to buy health insurance doesn’t affect anyone. Defaulting on your payments to your health care provider does. Congress chose, for whatever reason, not to regulate the harmful activity of defaulting on your health care provider. They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured.
JUSTICE KENNEDY: I agree — I agree that that’s what’s happening here.
MR. CARVIN: Okay.
JUSTICE KENNEDY: And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.
That’s my concern in the case.
Kennedy clearly enjoys being the swing vote. And he’s making the point that he’s considering all sides of the issue. But, in the end, given the number and tenor of his questions, it’s obvious (to me at least) that he’s going to rule against the mandate.