TOPICS > Health

Is Health Law’s Individual Mandate Constitutional? Legal Scholars Debate

March 27, 2012 at 12:00 AM EDT
Justices at the Supreme Court Tuesday heard arguments over the health care law and whether requiring citizens to buy health insurance is constitutional. Former Solicitor General Walter Dellinger and Georgetown University's Randy Barnett debate the legality of the health reform law's so-called individual mandate.

JEFFREY BROWN: And we return to today’s Supreme Court argument and its central debate: Is a mandate constitutional?

For that, we’re joined by two legal scholars who were in the court today. Walter Dellinger served as solicitor general in the Clinton administration. He filed a brief before the court on behalf of Democrats in Congress. Randy Barnett has helped shape the argument against the mandate and serves as counsel for the National Federation of Independent Business, one of the principal plaintiffs before the court. He’s a professor at the Georgetown University Law Center.

Welcome to both of you.

WALTER DELLINGER, former U.S. Solicitor General: Thank you.

JEFFREY BROWN: Since you were both there — Randy Barnett, I will start with you — what jumped out at you about today’s argument?

RANDY BARNETT, professor, Georgetown University Law Center: Well, unlike yesterday, where it really looked like the court was pretty unanimous on the question of whether the Anti-Injunction Act was going to bar them from hearing the merits of the case, today, it looked like the court was very equally divided.

I think you had four justices who were training most of their fire, for example, on the government’s side, and not as much fire on our side. And we had four justices training most of their fire on our side, and not all that much on the government’s side. And that just looked like a divided court, rather than the court like — that yesterday seemed pretty much on the same page.

JEFFREY BROWN: Walter Dellinger?

WALTER DELLINGER: Well, I was struck by the fact I think that both the chief justice and Justice Kennedy seemed to have some concerns about each side’s arguments.

I think probably most significant was the fact that the solicitor general said there are limits, that you can uphold a law which helps extend insurance coverage to 30 million Americans without giving Congress the authority to require purchases of people who are not in commerce, because — and I thought both the chief and Justice Kennedy understood this — because people will inevitably be in the market for health care.

The other side had conceded that you could require insurance at the time you access your health care. The government’s just giving an incentive to have that insurance earlier. And I think the fact that that commerce is inevitable is a distinction that got some traction with the court.

JEFFREY BROWN: Well, so take us to the key element here. You — as I said, you helped shape some of these arguments. What is the key argument, the nub of the argument against the constitutionality?

RANDY BARNETT: Well, first of all, there’s like — it’s unprecedented, it’s unlimited and it’s unnecessary. And it was — and the fact that it was unprecedented I think was sort of borne out today.

No justice, no matter what side they were on, and no counsel cited an example of the exercise of this kind of power in our history, that’s making people buy a product or service that — from a private company. So the unprecedented nature is something that Justice Kennedy started off with and then basically said, given that this is a new important power, aren’t you, Solicitor General, under some burden to justify that power?

So it’s that. It’s uncabined, in so far as I think that the. . .

JEFFREY BROWN: Uncabined being a legal term.

RANDY BARNETT: Unlimited. Sorry, unlimited. I have to remember that.


RANDY BARNETT: So it’s unlimited in so far as all the justice were pressing the solicitor general to explain what the limits are.

And you have heard Walter’s description of that to some degree. And so they’re concerned about whether there is any limit on the power to impose mandates. And then Justice Kennedy also made the argument that it in some respects is unnecessary because Congress does have a tax power that it could have used to solve many of these problems, but it chose not to.

So why should this power then be exercised in this case, this new power, be discovered?

JEFFREY BROWN: All right, so from the other side.

WALTER DELLINGER: I think it’s not that attractive a proposition to tell Chief Justice Roberts that the only way you can deal with a national problem of 30 million uninsured people is by having a monolithic national tax and agency solution like The New Deal.

And one reason it’s novel is that we’re using a more conservative approach that was recommended by conservatives of using the existing private market and giving people an incentive to engage in commerce. I think in some ways, the most significant moment came yesterday when the solicitor general was asked, suppose you decide you don’t want to comply with the mandate and buy insurance, you’re just going pay the $95 penalty the first year, it never goes higher than 2.5 percent of your income. Are you a law-breaker? What if you’re asked, have you ever violated the law?

And the solicitor general said unequivocally you can say no. In other words, this is just a relatively modest financial incentive to have insurance coverage. And what struck me was everybody in the courtroom, every justice, every advocate, every journalist, they all have health insurance, and they wouldn’t dream of doing without it.

So the idea that pushing people through this tax incentive to have coverage is an incursion on liberty seems odd.

JEFFREY BROWN: Well, what about that? But also you mentioned Justice Kennedy. We have had — there was of course a lot of focus on him.

And we quote — we heard him say this reference to the heavy burden of justification. But later on, he also suggested that people who don’t carry health insurance are still engaged in the health care market, which would support your side of things.

RANDY BARNETT: No, I agree with Walter. I think Justice Kennedy asked questions of both sides, including that question.


RANDY BARNETT: And if that’s really — if that’s the predictor of where he’s going to go in this case, then Walter ought to be happy.

But I do think one of the things I just want to say in response to what Walter said about the modest financial penalty that is in this case, if this is recognized, if this new power to mandate economic activity is recognized as a Commerce Clause power, there’s no reason why in the future it’s going to be limited to small monetary fines.

It could be including imprisonment for failing to perform the mandates that Congress wants to impose upon us. And that’s what differentiates this is from the tax power, where the only consequence of giving up a tax subsidy is financial.

JEFFREY BROWN: Well, that’s what it goes to, all these analogies we heard Gwen referring to, and every justice is trying to give an example, right, of where the limits are.


To me, the most critical question was the chief justice’s. He — he believes — he understands the government’s argument that people are going to inevitably need health care, but, he said, they’re not going to need some of these preventative services. They are not going to need — necessarily need mammograms or cancer tests. And you’re forcing them in that case to use a commerce they may not obtain.

And I think the answer to that is that that’s a decision made by Congress, because if you funded catastrophic care without funding preventative care, you create a perverse incentive that people avoid getting mammograms, and then you wind up having the insurance company or the government pay for breast cancer surgery or — and metastasized breast cancer. So it’s part of a package that makes sense to Congress. And, here, I think that is why the deference is called for.

JEFFREY BROWN: Yeah. I mean this is probably an unanswerable, provocative question, but how settled is the law? What are the justices looking at, without going back through all of the judicial history? But you said the case is unprecedented — or the law is unprecedented.

RANDY BARNETT: This is one of those very unusual cases — in fact, the Heller case is another one of these unusual cases — that Walter argued — where we really here are in more or less a case of first impression, because an economic mandate of this sort has never been used before.

In fact, I can prove that, because, if it had been, you’d know, the contracts the government makes you enter into or pay a penalty to the IRS, and since you don’t know of any such contracts, I can assure they don’t exist. Your parents didn’t know of any such contracts.

So, because it’s a case of first impression, there is no direct precedent that says Congress may do this or Congress may not do this. And that’s the reason why the argument takes on the coloration that it does.

JEFFREY BROWN: Do you agree with that, that the court does not have precedents to look at?

WALTER DELLINGER: I think precedents are not going to govern the case in that sense.

But in this case, the question is simply whether this is a regulation of commerce among the states. And the government can say it’s not a regulation of local matters, it’s not a regulation of local violence, it’s not a regulation of guns in your schools. It’s a regulation of one-seventh of the national economy.

So the burden ought to be on those who would argue that it’s somehow not a regulation of commerce for Congress to deal with something which is so integral and central a part of the national economy. Both sides are making arguments I think that haven’t been made before.

JEFFREY BROWN: Just real briefly, because you have both been before the justices, you have had this experience, it’s worth saying that these questions don’t help predict what the final votes are going to be, for the most part?

RANDY BARNETT: I don’t know. You do walk out the door with a certain feeling. I think we all walked out the door yesterday thinking the court wasn’t going to fail to reach the merits because of the Anti-Injunction Act.

I think most people walked out the door thinking, wow, this is a close case.

WALTER DELLINGER: Sometimes, you can tell. Sometimes, you can’t.

This is one where you can’t tell because the chief justice and Justice Kennedy certainly asked hard questions of both sides. So I think, at the end of the day, you don’t know what the outcome is going to be. We’ll find out in June.

RANDY BARNETT: Well, I agree with that.

JEFFREY BROWN: Okay, some agreement.

Walter Dellinger, Randy Barnett, thanks, both.


JEFFREY BROWN: Online, we have extensive coverage of the health care reform law, and you can listen to the audio of today’s arguments or read the transcript. We also have interviews with people who traveled to Washington to voice their opinions, pro and con, on the law.

Plus, you’ll find a post from Susan Dentzer on what happens if the individual mandate is struck down or takes effect. And Marcia Coyle’s primer for tomorrow’s session will be posted in the morning.

That’s all at