How conservative, non-activist judges might rule.

Saturday, April 14th, 2012 @ 10:31 am | Health Care, Politics

Once one descends a little deeper than Fox talking points about broccoli, the legal pathway is actually rather clear, conservative, and minimalist.

Limited Commerce Clause Holding:
Even assuming arguendo that Congress cannot require any and every purchase of goods or services under any circumstances (but cf. Judge Silberman’s “regulate”-includes-”require” argument to the contrary in Seven-Sky), Congress does have the Commerce Clause authority to control the means and timing of payment for goods and services that persons will consume, particularly so as to assure that the consumers do in fact pay for the costs of such goods or services. Thus Congress can at a minimum require everyone either (i) to maintain insurance for goods or services that virtually everyone will consume, that the government guarantees, and that many of the consumers will not otherwise be able to pay for (which would thereby shift substantial costs to the public at large); or (ii) to make a modest payment to the government (IRS) to help cover the costs the public will incur if and when the individual consumes services for which she cannot pay.

Such a formulation would not commit the Court to holding that Congress can require any and every purchase. Nor would it even imply that Congress can require a purchase whenever “non-purchase” has a substantial effect of any kind on interstate commerce–the principle that Randy assumes Justice Kennedy would have to accept in order to uphold the statute, and one that might justify a required purchase of GM cars since the failure to do so “causes” Detroit’s economic woes.

The key legal question, of course, is do we have five Republican politicians on the bench, rather than conservatives? Will a health care plan invented by, adopted by, and implemented by Republicans be rejected by the Court as soon as a Democrat decides to compromise and go along with the idea? We already know how Republican politicians have acted, but can we hope from better from the court? I suspect Kennedy will agree with the other conservative judges who have agreed with the Obama administration previously, but people holding out for a Roberts concurrence seem mighty hopeful to me.

-hw

3 Responses to “How conservative, non-activist judges might rule.”

  1. AJKamper Says:

    Far better argument, and one fairly close to mine:
    http://www.tnr.com/article/politics/102685/conservative-defense-obamacare-affordable-care-health

    Unlike Lederman’s, it doesn’t read new principles into the Commerce Clause, and implicitly relies on the N&P clause.

  2. Henry Whistler Says:

    Dude, they’re both built on practically the same premise, that nearly everybody will be a participant in the health care market whether or not they buy insurance. But you’re the lawyer here, so perhaps you’ll have to explain the nuances to my fool self.

  3. AJKamper Says:

    It feels to me like Lederman’s approach is trying to write too much into the Constitution. That is, it’s trying to find a reason why this power is limited, so you don’t need to worry about it rising up and controlling the whole process. But the Constitution doesn’t say, “Congress can also mandate commerce if the timing’s right,” it just says that Congress can regulate commerce. Thus, the argument looks shaky, even if there’s merit to it; it’s not going to convince conservatives.

    Monaghan’s, on the other hand, relies more heavily on the N&P–the idea that the mandate is “intimately tied” to the regulation of commerce. On the surface, you’re right, it’s not that different from Lederman’s, but the core of it isn’t trying to find a way in which this is still commerce. It’s just saying, “You can’t have this regulation of health care without the mandate in a way that isn’t true of eating broccoli,” and that’s that. It’s really just less lawyerly and more straightforward… the kind of thing that a conservative SHOULD appreciate.