When Congress is regulating -- is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme.Much of the oral argument focused on the plaintiff's claims that the mandate exceeded the scope necessary to fulfill this purpose -- that it was was "forcing healthy individuals to immediately start paying inflated premiums that exceed their actuarial risk," as Michael Carvin's brief put it -- an argument that seemed to make a deep impression on Justices Alito, Roberts and Scalia. I have argued in several posts that the drafters of the ACA in fact took care on several fronts to limit the scope of the mandate to the minimum required to create a viable private market for affordable health insurance (e.g., by providing catastrophic coverage and limited-coverage options)-- in effect, that the mandate is self-limiting. I have further suggested that Justice Kennedy, who seemed troubled by the scope of the mandate but also recognized the need to draw the relatively young and healthy into the insurance market, might either recognize the relatively narrow scope in his ruling or divide the baby by limiting the mandate to catastrophic coverage -- an argument developed with considerably more legal precision by Marty Lederman, who served in Obama's Office of Legal Counsel.
Here I want to focus on an element in Donald Verrilli's reply brief that provides a complementary path to arguing either that the mandate is already sufficiently limited or that it might be further limited.
In my first post on the subject, I noted that
it could be argued that the ACA already offers sufficient flexibility. States can take waivers if they want to design an alternative plan that offers equivalent coverage. That could perhaps include extending eligibility for the catastrophic care option -- though that would require a kind of waiver within a waiver, since the law as written specifies who's eligible for catastrophic care. Further, the department of Health and Human Services opted to leave it to the states to determine coverage parameters, in accordance with broad outlines. Might that decision also not provide space for states to seek permission to widen catastrophic care eligibility?In fact, as Verrilli's reply brief points out, the states have even more leeway than noted above:
..the Act provides States considerable flexibility. Maryland Amicus Br. 29-36. For example, beginning in 2017*, States may opt out of the minimum coverage provision if they establish an alternative means of affordably providing comprehensive coverage to a comparable number of residents. 42 U.S.C.A. 18052 (p. 12).Further, while rebutting the notion that upholding the ACA would enable Congress to pass a limitless parade of absurd purchase mandates, Verrilli points out that no states have done so -- noting almost by the way that "Respondents acknowledge that States do have the power to enact purchase mandates" (p. 18) and, further, that no one has challenged the Massachusetts mandate requiring state citizens to carry health insurance in court. Further, "Respondents ignore the principle that "[t]he authority of the federal government over interstate commerce does not differ in extent or character from that retained by the states over intrastate commerce" (p. 12) -- strongly suggesting that if the Massachusetts mandate is constitutional, so is the ACA's.
In in any case, states have the right to impose mandates, and states have the right to opt out of the federal mandate. Add that to the fact that the mandate in the ACA is designed to impose the minimum financial burden and the widest range of options consistent with empowering it "to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme," and it can be seen, again, to contain its own 'limiting principle.'
*Obama proposed last fall that Congress move the opt-out date up, I believe to 2014; the obstructionist House declined to do so.
Jonathan Cohn tells the justices: the ACA has catastrophic coverage options
Michael Carvin misrepresented the mandate in oral argument
The ACA offers catastrophic coverage: the AP notices
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization)
Go tell the justices: the ACA has a catastrophic coverage option