Vice Dean and Stanley H. Fuld Professor of Law, Columbia Law School
The argument on Tuesday made two key points clear. First, the five more conservative Justices are worried that allowing Congress to require individuals to buy health insurance before they seek healthcare would mean Congress's power has no bounds. Second, and as important, these Justices appear to accept that Congress could require individuals to obtain insurance when they do seek healthcare---presumably, because at that point, individuals are engaging in economic activity on their own volition. Indeed, both Paul Clement and Michael Carvin agreed that Congress could require insurance as a condition of getting healthcare.
Put these two points together, and the facial challenge to the mandate has to fail---even if a majority of the Court rejects the argument that everyone is active in the market for healthcare because everyone will seek healthcare at some point in their lives. That's because tens of millions of uninsured currently seek healthcare each year---57% of the 40 million uninsured, to quote a leading study. On the reasoning above, the mandate is constitutional as applied to this substantial group of people. Whether the test for a facial challenge is that it can only succeed if there's no constitutional application, or that it can succeed only when a challenged provision lacks any plainly legitimate sweep, the mandate meets it. As a result, the Court plainly should reject the facial challenge, and at most hold the mandate unconstitutional as applied to individuals who do not use healthcare in a given year.
Of course, that's assuming the Court adheres to its current doctrine that facial challenges are disfavored and that courts should avoid invalidating more of a statute than necessary. Resistance to facial challenges has been a pronounced characteristic of the Roberts Court. But the arguments on both Tuesday and Wednesday suggested that adherence to current doctrine isn't exactly the Court's paramount concern in these cases. The conservative Justices seemed unconcerned about the mandate's central role in ensuring the effectiveness of the ACA's regulation of insurers, even though in 2005 they sustained regulation of local noneconomic activity in Gonzales v. Raich on these grounds. They also seemed undeterred by the Court's repeated acceptance of conditional spending arrangements. If the Court is willing to cast aside core doctrines that have governed its assessment of congressional power challenges since the New Deal, asking for consistency on the facial challenges front may well be unrealistic.