Tuesday, April 24, 2012

Verrilli's 'limiting principles' for the individual mandate in the Affordable Care Act

In a post I put up immediately following the March 27 oral arguments in the Supreme Court over the constitutionality of the individual mandate, I argued that Solicitor General Donald Verrilli's difficulty articulating a "limiting principle" to the government's right to mandate purchases stemmed in large part from constant interruption by the justices -- and that Verrilli did eventually produce the demanded limiting principle (two, in fact).

Oral argument is a cauldron of conflict -- at least, this one was. What came out of Verrilli in broken syntax and shorthand on March 27 is stated with admirable precision in his reply brief to the plaintiffs' briefs against the constitutionality of the mandate.  Here I'd like to compare the oral and written.

Here's the first principle as stated in oral argument:
JUSTICE ALITO: Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme?




JUSTICE ALITO: Is there anything more?

GENERAL VERRILLI: We got two and they are -- they are different. Let me state them. First, with respect to the comprehensive scheme. 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. It's like -- it's very much like Wickard in that respect. Very much like Raich in that respect ( p. 44).
The mandate "is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme" -- that is, obtaining medical care they cannot pay for because they are uninsured. Compare the tighter formulation in the reply brief:

This Court has made clear that Congress may act to address increased risks, attributable to the regulatory scheme itself, that the regulated class will engage in economic activity that undercuts the scheme--here, delaying the purchase of insurance until it is needed. Raich, 545 U.S. at 18-19; id at 37 &  n.2 (Scalia, J., concurring in the judgment....). Upholding the Act on the basis of that settled principle would not authorize Congress to treat the mere failure to purchase a commodity as activity undermining a larger scheme (p. 15).

The claim that the mandate is essential to ensure that the scheme will not be "undercut" is aimed at the plaintiffs' claim that compelling purchase is not "necessary" to make the scheme "work" -- Congress could order insurance companies to provide guaranteed issue and community rating without preventing people from remaining uninsured until they get sick, or require them to buy insurance only when they need care. To that argument, the reply brief counterpoised real-world evidence and precedent indicating that such real-world evidence is an appropriate way to show necessity:
The experience in States that enacted such reforms without a minimum coverage provision (and suffered serious adverse selection as a result)  confirms that judgment [of Congress, that the minimum coverage provision is essential to creating a viable market]...see Jones & Laughlin Steel Corp...([I]nterferences with [interstate] commerce must be appraised by a judgment that does not ignore actual experience."). A regulation cannot be "effective" (Wrightwood Dairy...) without another regulation if, when implemented alone, it would lead to severely negative economic consequences that would be the opposite of what Congress intended" (p. 14)
As a further "limiting principle" on Congress's power to impose purchase mandates necessary to any given scheme to regulate interstate commerce, the reply brief cites...democratic accountability. Here too, real-world evidence is brought to bear:
There is no reason to think that a democratically accountable Congress would ever exercise a power to compel the purchases respondents conjure up, much less that doing so would be "highly attractive," States Br. 23 (quoting Printz, 521 U.S. at 905). Quite the contrary. Respondents acknowledge that States do have the power to enact purchase mandates (id. at 17) , but they identify no example of any State ever having compelled its citizens to buy cars, agricultural products, gym memberships, or any other consumer product. That is surely because the power is not an"attractive" one, and would be used only when a legislature believes it is necessary to address a problem of sufficient importance tow arrant any political accountability consequences that may ensue--as States have done in imposing insurance requirements (Gov't Br. 36-37) (p. 18).
Verrilli's second limiting principle pertained to the peculiar nature of insurance: unlike other products, you have to buy it before you manifestly need it, though he did not stress that point orally:
With respect to the -- with respect to the -- considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the -- the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.
In his closing response in the 3/27 oral argument,  Verrilli stressed that requiring sick people to buy insurance at the time they required care "will never work" (p. 109). Again, though, the written argument in the reply brief is far clearer:
The minimum coverage provision regulates only how participants in a market finance that participation, i.e., through insurance rather than through attempted self-insurance and financing borne by other market participants. Health insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks. Gov't br. 41. Because insurance is "essentially different from ordinary commercial transactions," this Court has recognized that constitutional rulings regarding insurance regulation may be "confine[d]" to that setting....Upholding the minimum coverage provision thus would not authorize Congress to compel purchase of an end-product by a stranger to that end-product's market....
The minimum coverage provision is also different than the other insurance schemes respondents posit. States Br. 23, 47. If an individual does not have flood insurance, he cannot compel contractors to repair his flood-damaged home for free. Nor does a funeral home have an obligation to bury the indigent... (p. 19).
It's of course not surprising that a written argument would be more comprehensive and precise than an oral one -- though it must also be said that plaintiff's attorneys Clement and Carvin were more on point, their syntax cleaner and their responses more direct, than Verrilli.  Supporters of the ACA must hope that the written arguments weigh more heavily -- if anything other than the justices' predispositions weigh at all .

As I have noted repeatedly, Clement and Carvin placed at least as much emphasis on allegations that the mandate was excessive -- forcing hoards of libertarian young people to buy Cadillac coverage they don't need -- as an arguments that Congress lacke dthe authority to impose any purchase mandate. These claims were echoed approvingly by Alito, Roberts and Scalia and went unchallenged, notwithstanding that they are false.  The mandate is self-limiting.  Below, an index of xposts and outside articles (noted as such) on this subject.

Kaiser weighs in: the ACA offers catastrophic coverage to all comers (4/27)
Patient cost-sharing under the Affordable Care Act (Kaiser Family Foundation. 4/27)
Jonathan Cohn tells the justices: the ACA has catastrophic coverage options (4/20)
Will the justices make a catastrophic error? (Jonathan Cohn, 4/19)
Michael Carvin misrepresented the mandate in oral argument (4/12)
The ACA offers catastrophic coverage: the AP notices  (4/10)
Supreme Court misunderstanding on health overhaul? (AP's Ricardo Alonso-Salvidar, 4/10)
Marty Lederman concurs: the individual mandate could be trimmed, not killed (4/5)
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization, 4/2)
Go tell the justices: the ACA has a catastrophic coverage option (3/31, updated 4/2)
Was Verrilli just the wrong man for the job? Part I (Ragbatz Tumblr, courtesy of Anon below, 3/28)

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