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Reflections on the Individual Mandate Argument

March 28, 2012 8:30 AM

Orin Kerr
Professor of Law, George Washington Law School

What a day. The challengers need to sweep all four of the Republican nominees who are potentially in play -- Roberts, Alito, Scalia, and Kennedy. Based on today's argument, it looks like all four of those Justices accepted the basic framing of the case offered by the challengers to the mandate. In particular, they all seem to accept that a legal requirement of action is quite different from a legal requirement regulating action, and that therefore the expansive Commerce Clause precedents like Raich did not apply to this case. That was the key move Randy Barnett introduced, and the four key Justices the challengers needed seemed to accept it. That was an enormous accomplishment for the challengers.

If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President's strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. At the time, the President's opponents heralded the Court's new decisions as the restoration of the rule of law; the President's allies condemned them as the products of unbridled judicial activism. If the mandate gets struck down, we'll get a replay of sorts. Just substitute health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard v. Filburn for Eisentrager.

Based on today's argument, I think it's a toss-up as to which side will win. My sense is that Scalia is very clearly against the mandate, and Alito seemed to lean that way. Roberts also seemed more on the anti-mandate side than the pro-mandate side. It's a cliche, but the key vote seems to be Justice Kennedy. As my friend and fellow former Kennedy clerk Steve Engel told the Wall Street Journal today, "It's entirely possible he doesn't know yet which way he's going to go." And yet assuming the Justices feel bound to the usual practice of finishing up the Term's opinions by late June, there isn't much time. These opinions are hugely important and yet will have to be written very quickly, which doesn't bode well for their likely quality.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.