Shortly in advance of yesterday’s Supreme Court oral argument on the constitutionality of the individual mandate, the ever-helpful Washington Post published an Outlook piece by former solicitor general (“he was only ‘acting’”) Walter Dellinger that was clearly aimed at bolstering the position of the Affordable Care Act’s (ACA’s) defenders.
As an initial act of full disclosure, Professor Dellinger tried to teach me his version of constitutional law at Duke Law School in the early 1970s. (He failed at that in the long run, although I received a very high grade from him). He was an engaging lecturer, popular with students, still early in his career, and a quite energetic advocate. But I have no conflict of interest in this case. When it comes to his second-hand understanding of health policy, and the legal position he pushes too far, he’s wrong. And his myths are as good as a mile off base.
– Does the individual mandate force everyone to buy health insurance? Dellinger’s argument actually underscores how weak the mandate in the ACA really is, without admitting that this will limit its effectiveness. However, that did not stop the Congressional Budget Office from basing most of its overly optimistic estimates of increased health insurance coverage under the law to the apparent lemmings-like compliance with a similar mandate in Massachusetts because “it’s the law!” The ACA mandate actually would apply to everyone who is not exempt (mostly due to something about “unaffordable” coverage, I hear), including the vast majority of Americans who already are insured, but would be subject to its penalties if they ever lost or dared to drop their existing coverage.
– What would invalidating the individual mandate affect in the rest of the health law? Dellinger adopts the selective severability stance of the Obama administration, which argues that losing the mandate would jeopardize all the “good stuff” that people want from the ACA’s insurance regulations (guaranteed issue and community rating) and jeopardize the private insurance market (demonized as greedy and heartless on other days of the week), but nothing else. The legal problem with this argument is that it fails to square with the two primary rules for severability of unconstitutional provisions from a larger and more complex law. (1) Would Congress have enacted this law without the constitutionally invalid provision (the mandate)? (2) Can the provisions in the rest of the law function as intended without this unconstitutional provision?
The best legal answer to the first question is “No way.” The law barely passed, with no margin to spare, and neither the House nor Senate was permitted to vote to amend, or drop, the individual mandate. Hence, any complete review of the legislative bargain involved in passing the ACA would invalidate the entire law. But the Supreme Court doesn’t always reach the simplest decision when other factors are in play. It would be, not quite in Vice President Biden’s off-mike words, a really big deal for the Court to take down the entire health law and leave nothing standing. So, when we turn to the second test, it’s a bit more complicated. The Court does not want to act as a super-legislature and pick and choose among many pieces of a badly interconnected contraption posing as the latest congressional work of off-kilter art (think of Picasso as the primary drafter, rather than someone from the Impressionist school).
The approach advocated by Dellinger, and the current solicitor general in briefs filed with the Court, attempts to be too clever by half. It in effect says that the individual mandate is inextricably tied to the success of several health insurance regulations that Congress clearly had constitutional authority to enact (thereby bolstering the broader commerce power argument for the constitutionality of the mandate itself—either as necessary and proper to execute such regulation or, as in the recent Raich case language upholding federal regulation of home-grown medical marijuana, “an essential part of the larger regulatory scheme” for carrying out constitutionally valid federal purposes).
The health policy problem here is that two wrongs do not make a right (except in Congress). Guaranteed issue and community rating have disrupted insurance markets in states that adopted such regulations because they don’t make economic sense and only try to shift the higher costs they produce on to other unwilling parties. Compelling such transactions through the coercion of a government-enforced individual mandate may redistribute temporarily those higher costs through less visible cross-subsidies and price distortions, but it doesn’t reduce them overall.
As a constitutional law matter, the individual mandate is not “necessary” for executing those insurance regulations; it’s just used to get other parties to pay (off-budget) for the increased costs they produce for the primary targets of regulation. Nor is it “proper” as an ordinary mechanism for carrying out commerce power regulation, let alone consistent with the traditional allocation of constitutional powers and liberties between the federal government, the States, and the people. Indeed, the mandate—compelling someone to enter into commerce and then buy a government-approved private product—is unprecedented and unbounded by any effective limiting principle.
Moreover, Dellinger’s suggested line to be drawn for severability is far too arbitrary and politically opportunistic. The better functional dividing line for the ACA provisions that cannot operate as intended, without an individual mandate, extends at least across all of the health coverage and insurance regulation provisions—not just the “popular” ones—in title I of the ACA (as I have argued with several other health policy and health law colleagues in an amicus brief submitted in this case).
– Dellinger tries to dismiss the argument that, if the unprecedented mandate is upheld as constitutional, there will be no remaining constitutional law boundaries limiting what a future Congress could do in the name of regulating commerce. The Tuesday morning questioning by a number of Supreme Court justices suggests that they’re having a harder time finding any limiting principle in the federal government’s legal argument for an individual mandate. (I’m buying options on broccoli futures, to hedge my bets). Healthcare is different in one sense—it is more regulated, politicized, and financed with other people’s money than just about any other good or service in our still-largely market-based economy. But the modest amount of cost shifting that actually occurs in healthcare, as well as the uncertainties, risk of high costs, asymmetric information, and imperfect competition that Americans potentially face for healthcare, are present in a number of other markets for goods and services. And the ACA simply uses government coercion, hidden cross subsidies, and price controls to redistribute and shift healthcare costs on an even larger scale through political means from one group of Americans to another. (That would be the conservative definition of “freeloading” through the political system).
– Is the law “socialist”? Dellinger trots out this straw man to recycle a different myth; that the mandate is just a good old-fashioned Republican idea first developed by the type of GOP leaders who used to be good losers and dutiful tax collectors for the welfare state. (Their best ideas used to be called “Constructive Republican Alternative Proposals” in the old days, but better described in their shorter, acronym form). I’ve written elsewhere about the real past history of some Republicans’ bad blind date with a mandate in the early 1990s, when RINOs still roamed across a larger stretch of the watering holes for the GOP’s ruling class. As once was said during the second Reagan administration, “Mistakes were made,” but not at the grassroots level where support for the mandate never existed to the degree it might have been imagined in Washington. The Massachusetts detour into a mandate last decade was well outside mainstream Republican thinking, and the state’s former governor still has to choreograph his own dance steps around it. I’m also still waiting for that Washington Post story that points out that reducing marginal income tax rates was a Democratic idea—at least during the Kennedy administration! (Don’t hold your breath).
– Have we seen this all before? Dellinger’s final myth is that this latest “threat to liberty” soon shall pass, as did earlier objections to social security, Medicare, and minimum wage laws. (He shows remarkable restraint in not tossing in civil rights laws for gratuitous effect). He obscures the constitutional law distinction that those expansions of federal power flowed from the less restrictive nature of the power of Congress to raise taxes and spend money to enhance the general welfare (though not exclusively limited to expanding the welfare state, to be sure) or to regulate the terms of interstate commerce when it actually takes place. Somehow, the apologists for the view that politics alone will provide the necessary checks and balances to restrain unwise or excessive exercise of such sweeping federal power nevertheless stop short of that stance when their more-favored constitutional rights and limits on government power are on the line elsewhere—like, say, free speech under the First Amendment, or whatever greater level of equality and new rights can be coaxed out of the 14th Amendment, or whenever any other emanations from penumbras can be found. The Tenth Amendment appears to be another part of outdated fly-over land in their more modern Constitution.
At least that’s more or less how I recall it in some of the law school classes in Durham that I’ve been able to leave behind as well, or at least update based on a broader evidence base.