Overruled (29 page)

In the meantime, Verrilli was enduring a grueling attack from Chief Justice Roberts, who wasted no time tearing apart the government's Commerce Clause argument, which rested on the idea that because we will all require health care at some point, the government
may stipulate how we pay for it in order to prevent the uninsured from imposing a burden on others in the marketplace. “Once we say that there is a market and Congress can require people to participate in it, as some would say, or as you would say,” Roberts told the solicitor general, “it seems to me that we can't say there are limitations on what Congress can do under its commerce power.” In fact, Roberts continued, “given the significant deference that we accord to Congress in this area, all bets are off.”
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Justice Antonin Scalia voiced similar misgivings. “Why do you define the market that broadly?” he asked the solicitor general. “Everybody has to buy food sooner or later,” Scalia continued, “so you define the market as food. Therefore everybody is in the market; therefore you can make people buy broccoli.”
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It was the same issue that troubled the Eleventh Circuit in 2011, which struck down the mandate because the government had failed to articulate a “generally applicable, judicially enforceable limiting principle.”
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Nor did liberal Justice Stephen Breyer do the government's case any favors when he chimed in to say that “yes, of course,” Congress can “create commerce where previously none existed,” which could include forcing all Americans “to buy cell phones”
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to facilitate the provision of emergency services (a hypothetical posed by Roberts). Verrilli hastened to clarify that the government was not in fact endorsing a cell phone mandate, but the damage seemed to have been done.

To make matters worse for the government, after Verrilli suggested that a ruling against the individual mandate would be tantamount to judicial activism because it would “import
Lochner
-style substantive due process,”
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Roberts shot forward in his chair to forcefully dismiss the idea. Several minutes later, Roberts circled back and accused the government of inviting judicial activism by asking the Court to decide that a health insurance mandate is acceptable but that a broccoli or cell phone mandate is not. “It would be going back to
Lochner
if we were
put in the position of saying, no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways,” Roberts declared. “I think that would be a very significant intrusion by the Court into Congress' power.”
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Lochner,
of course, is the 1905 case in which the Supreme Court struck down a state law limiting the working hours of bakers, saying it violated the Fourteenth Amendment right to liberty of contract. In the eyes of most liberal legal thinkers,
Lochner
stands as a notorious example of conservative judicial activism. But many conservative legal thinkers also dislike
Lochner,
and for the exact same reason. Among those conservatives is John Roberts. During his Senate confirmation hearings, the future chief justice said, “You go to a case like the
Lochner
case, you can read that opinion today, and it's quite clear that they're not interpreting the law; they're making the law.”
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So when Roberts told Verrilli that the government's theory of the Commerce Clause risked unleashing
Lochner
-style activism by the courts, he was raising a powerful objection, one that allowed him to wear the mantle of conservative judicial restraint. It was a sign of things to come.

“The President Said It Wasn't a Tax”

The solicitor general was given a full hour to make his case that morning. With less than fifteen minutes left on the clock, he finally turned to his fallback position: The individual mandate may also be upheld under Congress's power to tax. “In terms of the tax power,” Verrilli explained, “I think it's useful to separate this into two questions. One is a question of characterization. Can this be characterized as a tax; and second, is it a constitutional exercise of the power?”
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Once again, Verrilli ran into trouble. “The President said it wasn't a tax, didn't he?” asked Justice Scalia.

“The President said it wasn't a tax increase,” Verrilli carefully responded, “because it ought to be understood as an incentive to get people to have insurance. I don't think it's fair to infer from that anything about whether that is an exercise of the tax power or not.”

But the point of a tax is to raise revenue, objected Justice Ruth Bader Ginsburg, “and the purpose of this exaction is to get people into the health care risk—risk pool before they need medical care. . . . That's what the penalty is designed to do, not to raise revenue.”
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“You're telling me they thought of it as a tax, they defended it on the tax power,” added the chief justice. “Why didn't they say it was a tax?”
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As Verrilli continued fielding those objections, Scalia suddenly spoke back up. “You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause blah, blah, blah, blah, it really doesn't matter,” he told Verrilli. “This is a tax and the Federal Government could simply have said, without all the rest of this legislation, could simply have said, everybody who doesn't buy health insurance at a certain age will be taxed so much money, right?”

But Verrilli dodged the question. The government “used its powers together to solve the problem of the market not providing affordable coverage,” he told Scalia.

“Yes, but you didn't need that,” Scalia immediately shot back, his voice getting louder. “If it's a tax, it's only—raising money is enough.”

Verrilli held his ground. “It is justifiable under its tax power,” he insisted.

“Okay,” Scalia responded. “Extraordinary,”
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he added a few seconds later, the disbelief evident in his voice. Would the tax power end up deciding the outcome of this case, even after two years of courtroom battles over the scope of the Commerce Clause? Scalia appeared to be astounded at the thought.

“The Democratically Accountable Branches of Government”

The next hour belonged to the legal challengers. Former Solicitor General Paul Clement, attorney for the twenty-six states, and conservative lawyer Michael Carvin, attorney for the National Federation of Independent Business, each had thirty minutes to lay siege to the individual mandate. Both came out with guns blazing. “The Commerce Clause gives Congress the power to regulate existing commerce,” Clement declared. “It does not give Congress the far greater power to compel people to enter commerce, to create commerce essentially in the first place.”
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Carvin amplified the point. “I'd like to begin with the Solicitor General's main premise,” he told the Court, “which is that they can compel the purchase of health insurance in order to promote commerce in the health care market because it will reduce uncompensated care. If you accept that argument,” he continued, “you have to fundamentally alter the text of the Constitution and give Congress plenary power.”
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Things were not looking good for the government's Commerce Clause theory, as one conservative justice after another signaled varying degrees of sympathy for the legal challengers. Ironically, however, neither Clement nor Carvin spent any significant time rebutting Verrilli's second justification for the mandate, the tax power. In retrospect, it is a striking omission.

As day two began winding down, the solicitor general returned to the lectern to deliver a final, four-minute rebuttal. He made wise use of that time. “Congress confronted a grave problem when it enacted the Affordable Care Act: the 40 million Americans who can't get health insurance and suffered often very terrible consequences,” Verrilli began. And to solve this grave national problem, he continued, Congress used its powers under the Commerce Clause to craft a comprehensive
national solution. “That is the kind of choice,”
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Verrilli emphasized, that must remain in the hands of elected lawmakers.

Turning next to the taxing power, Verrilli made perhaps the single most important argument of the entire three-day saga. “But if there is any doubt about that under the Commerce Clause, then I urge this Court to uphold the minimum coverage provision as an exercise of the taxing power,” he said. According to the Court's own precedents, Verrilli stressed, the Supreme Court “has a solemn obligation to respect the judgments of the democratically accountable branches of government, and because this statute can be construed in a manner that allows it to be upheld that way, I respectfully submit that it is this Court's duty to do so.”
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“Thank you, General,” the chief justice responded, bringing the day's arguments to a close. “Counsel, we'll see you tomorrow.”
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Day Three: “I Would Urge This Court to Respect That Judgment”

The third and final day of arguments featured two separate sessions. First came the matter of severability. Did the entire ACA have to fall if the mandate was ruled unconstitutional? The justices appeared closely divided on the question. Then, after a short lunch break, came the Medicaid expansion. Was Congress coercing the states with a so-called gun to the head or merely spending money for the general welfare? A majority of the Court appeared hostile to Congress's tactics in this area and seemed willing to rule against the Medicaid expansion. Indeed, the government ultimately lost on this issue by a vote of seven to two. Once again, things were not looking good for the federal government.

In his final minutes at the lectern that afternoon, Solicitor General Verrilli took one last shot at saving the ACA. And once again, he made wise use of his time. “I'd like to take half a step back here,”
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he told the
Court. “The Medicaid expansion that we're talking about this afternoon and the provisions we talked about yesterday, we've been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace.”
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But there is one more element to consider, he said. And that element is democracy. Health care reform “is something about which the people of the United States can deliberate and they can vote,” Verrilli maintained, “and if they think it needs to be changed, they can change it.” The Supreme Court should not usurp that power and displace the people's basic right to chart their own course. “This was a judgment of policy that democratically accountable branches of this government made by their best lights,” he concluded. “And I would urge this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld.”
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At 2:24 p.m. that afternoon, the case was submitted. The fate of the Patient Protection and Affordable Care Act now rested in the hands of the U.S. Supreme Court.

The Bully Pulpit

In 1935, when President Franklin Roosevelt faced off against the Supreme Court over the constitutionality of the New Deal, he waited until four days after the Court invalidated his National Industrial Recovery Act before launching his famous attack on the “horse and buggy”
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origins of the Commerce Clause. President Barack Obama, by contrast, could barely wait a week after the conclusion of oral arguments before lecturing the Supreme Court about its treatment of his health care law.

Speaking to the press on April 2, Obama said he was confident “the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of Congress.” Moreover, Obama added, “for years, what we've heard is the biggest problem on the bench was judicial activism, or a lack of judicial restraint. An unelected group of people would
somehow overturn a duly constituted and passed law. Well,” the president said, “this is a good example. And I'm pretty confident this court will recognize that and not take this step.”
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The president's allies soon picked up on the theme. “I trust that [John Roberts] will be a chief justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch,” declared Democratic Senator Patrick Leahy of Vermont several weeks later. “It would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.”
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Writing in
The New Republic
on May 4, legal affairs writer Jeffrey Rosen described the pending health care decision as “John Roberts's moment of truth.” The chief justice “has to decide what kind of legal conservatism he wants to embrace,” Rosen wrote. “Of course, if the Roberts Court strikes down health care reform by a 5–4 vote, then the chief justice's stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure.”
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In light of the chief justice's ultimate decision to uphold the health care law, the timing of these statements now appears suggestive. Was there a lobbying effort by liberal politicians and pundits designed to influence Roberts's opinion? Many conservatives thought so at the time. “It is cheeky of Rosen, a liberal, to lecture Roberts about jurisprudential conservatism,” wrote
Washington Post
columnist George Will on May 25. “Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel.”
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