Ceterum censeo: these cases had to be brought as a matter of political hygiene and by way of demonstrating that we’re not Argentina just yet. Admission: I’m a huge fan of Paul Clement and Michael Carvin, who head the plaintiffs’ legal teams. It’s all the more important, though, to recognize that the constitutional arguments in the cases don’t always mesh easily with conservative-libertarian opposition to Obamacare’s policy—or for that matter, with their concerns over the state and trajectory of American federalism. Two examples:
- An inordinate amount of discussion and agitation has arisen over the ACA’s “individual mandate”—that is, the requirement that uninsured individuals (starting in 2014) must have what the government considers “minimum essential coverage,” enforceable in theory by a penalty. But while the constitutional question of whether Congress has power to enact such a mandate is a big deal, the mandate itself is far too small to affect the ACA’s economics one way or the other. It wasn’t a proto-socialist power grab but a sop to the health insurance lobby on K Street (which needed a fig leaf for selling its members down the road to extinction). Recall, too, that candidate Obama opposed the mandate. Should the plaintiffs now win on the mandate but nothing else, he’ll get his wish.
That said, there’s a potent argument that the mandate, as enacted by Congress, cannot be so neatly separated from other operative parts of the ACA. The best brief in this vein to date has been filed by Tom Christina of Ogletree Deakins on behalf of the Competitive Enterprise Institute and several health care experts. (Disclosure: I serve as CEI’s chairman, and two of the experts, Tom Miller and Joe Antos, are my colleagues at AEI.) Worth reading: Mr. Christina understands and explains the sheer nastiness of this statute like no one else.
- The state plaintiffs claims that the ACA’s expansion of Medicaid unconstitutionally “coerces” them into participating in the federal scheme. In some ways, that’s almost the reverse of the mandate issue: the ACA’s Medicaid expansion is a very big (half-trillion dollar) real-world deal—and the states’ argument has no prayer. For reasons I’ve explained here, moreover, it’s wholly inconsistent with a sensible understanding of our federalism and with any agenda to re-approximate such an understanding.
The upside and perhaps the genius of the hopeless Medicaid claim is to give suitably disposed justices a way to “split the difference.” Dinging the mandate alone would prompt histrionics about a second Bush v. Gore, a supposedly plutocratic Court, and a Tea Party in robes; dinging the states on the Medicaid issue in the same set of cases may give the justices cover. The art is to appreciate the joke—and not confuse it with the merits.