The instant analysis of last week’s three days of oral argument is over. Let’s take a closer look at how the players at the Supreme Court viewed the individual mandate at the heart of the Affordable Care Act. The constitutional law argument essentially came down to whether Congress (finally) had gone too far over the limit in stretching federal power to regulate interstate commerce in unprecedented and unbounded ways. Or was this power play just a matter of timing – in regulating the inevitable more effectively by doing so earlier in time?

We start with Solicitor General Donald Verrilli, Jr.’s case for the individual mandate. Verrilli insisted that Congress used the individual mandate and its penalty provisions merely to regulate how people pay for health services that they are virtually certain to use at some point in their lives. He noted that even the opposing side’s attorneys had conceded that Congress could require that individuals have insurance in order to get health care at the point of sale (or point of service). But that limited type of just-in-time insurance requirement would not work very well. It still would cause substantial costs to be shifted from the uninsured to other parties. (No one in court brought up how retroactive enrollment in Medicaid actually operates in many hospital settings to “insure” low-income, uninsured patients when they show up and receive treatment).

Does the federal government therefore have authority to ensure that people have a better way to pay for health care – through insurance – in advance of that point? Vercelli emphasized that the market for health care is very unique. Participation by an individual at any particular time is often unpredictable and often involuntary. You often don’t know before you go into this market what you will need (sort of like opening up Forrest Gump’s metaphorical box of chocolates). And you still might get it even if you can’t (or won’t) pay for it.

Admittedly, U.S. health policy has a long history of paying one person’s health care bills with someone else’s money — whether through third-party insurance dollars, taxpayer-financed entitlement programs, federally-mandated emergency care, or uncompensated care subsidies. Indeed, the requirement to pay far in advance has been stretched even further in the case of Medicare – across several generations – with no secure guarantee that younger “contributors” will receive fair value in return for their taxes and debt repayments, many decades ahead. (No refunds are allowed, either, in such underfunded, pay-as-you-go schemes). But even the latter Ponzi scheme (“It’s good to be the king…”) is legally authorized under the power of Congress to tax, not its power to regulate commerce

Verrilli assured the Court that the commerce power was not completely unlimited. Congress could not rely on it to justify forced purchases of commodities for the purpose of stimulating demand. (We have to rely on the Federal Reserve and deficit spending to handle that job less directly). Nor would it even justify purchases of insurance in situations in which insurance doesn’t serve as the “method of payment” for a particular type of service.

Verrilli went so far as to claim that use of the commerce power in this case did not go further, and justify the “creation” of commerce (a fundamental point that the states and individuals opposing the individual mandate would challenge). The mandate to purchase insurance before health care services were received was just a question of “timing.” And those services would, sooner or later, have a substantial effect on interstate commerce.

One might recall the old joke about someone who claims to be the world’s most famous comedian. He is asked by an interviewer, “What is the secret of your success as the world’s most …..” “Timing,” he replies.

The Solicitor General tried to build a case for the individual mandate as just another necessary part of the execution of fully-constitutional federal insurance regulation. For example, he pointed to the statutory and regulatory requirements of federal laws like ERISA and HIPAA. But both of those laws involve regulating commerce that already has occurred, rather than compelling it to take place initially.

Verrilli’s oral argument also included a recycling of the weak argument that the individual mandate and its penalty for non-compliance should be upheld as part of the congressional power to levy taxes. It did not appear to overcome two major hurdles with most of the Supreme Court justices. (1) On Monday, he had to try to explain why the mandate was not a tax for purposes of the Anti-Injunction Act (AIA), which otherwise might delay consideration of the entire case for several more years. Even though the tests for a “tax” under the AIA are somewhat different from those for whether a tax enacted by Congress is authorized under the Constitution, it’s a tricky dance routine to pull off on successive days of the week in the same case. (2) Particularly when Congress went out of its way in the ACA to insist that the individual mandate was NOT a tax, but just a penalty. Congress even included in the law its findings of fact (or fiction, depending on one’s perspective) that were intended to support the claim that it was relying on its power to regulate commerce in enacting the individual mandate.

When Verrilli was asked why President Obama said the mandate was not a tax (while Congress was still considering whether to pass the ACA), he could only respond, “I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.” (in other words, but not his: “Who are you going to believe – me or the moving lips of the President and Congress that supported the ACA’s mandate and insisted it did not raise taxes?”)

The Solicitor General’s most difficult assignment was to frame and articulate a clear limiting principle in constitutional law that would authorize the individual mandate but not leave future use of the congressional power to regulate commerce so sweeping that it would be essentially unlimited and authorize the forced purchase of many other goods and services beyond just health insurance. Verrilli’s attempts to do so under questioning by several justices were not very successful. His best version offered two limiting principles.

· When Congress approves a comprehensive regulatory scheme that it already has constitutional authority to enact (like regulation of health insurance or the purchase of health care), the Necessary and Proper clause of the U.S. Constitution gives it authority to include regulation of this kind – to counteract risks attributable to the scheme itself, and

· With just its commerce power alone, Congress can regulate the method of payment for health care by imposing an insurance requirement in advance of the time that a health care service is consumed, when the “class” to which the requirement applies either is, or is virtually certain to be, in that market.

But the bottom line is that it appears that a majority of the Court did not find these efforts at framing a limiting principle in constitutional terms clear, consistent, or sustainable. And they did not get the joke in the ACA’s mandate argument. Wrong time, wrong court, wrong law.

Coming up next, the legal case for the other side, and how the various justices reacted.