Again, this analysis is hardly original. But who can really be original at this point? What has not been said, many times over? Still, I fight on, into the teeth of utter redundancy:
1. Where is the Government's limiting principle? In many respects, the doctrinal argument for the minimum coverage provision is simple and virtually unassailable under existing precedent: (1) the ACA comprehensively regulates the health care services and individual insurance markets, a scheme that plainly regulates interstate commerce; (2) preventing adverse selection in the individual insurance market it critical to making this broader regulatory scheme effective; (3) the individual mandate is a rational (if imperfect) way of solving this adverse selection problem; and thus (4) the mandate is a necessary and proper means to making Congress's regulation of interstate commerce effective. The problem, though, is this: Where does this logic end? If Lopez and Morrison stand for anything, it is that there is some judicially enforceable limit on Congress's enumerated powers. If Congress can mandate the acquisition of health insurance, what products can it not mandate be purchased in pursuit of regulating the relevant market? Thus far, the Government has failed to offer a fully satisfactory answer. This is not necessarily fatal, but it's the weakest link in the mandate's constitutionality. What is Mr. Verrilli's answer tomorrow? Can he avoid the fate of his predecessor, Drew Days, who was unable to satisfy the justices in his answer to the same basic question in Lopez?
2. Why is this not just a question of means? For the other side, the weakest link is probably this. Everyone concedes that Congress could require every American to purchase health care services with insurance--that is, it could prohibit all other forms of financing health care, and thus make it illegal to pay for care with cash, etc. If that is so, how can it be unconstitutional for Congress simply to require that the coverage be obtained in advance of when the care is needed, rather than at the point of purchase? Congress's choice in the ACA seems much more rational, not to mention more humane. Moreover, shouldn't the Court defer to Congress's choice of precise means, given that this other form of insurance mandate is plainly constitutional? Hasn't McCulloch held for nearly 200 years that the Court must defer to Congress on questions of this sort? It will be quite interesting to see how hard the justices pound Mrrs. Clement and Carvin along these lines.
3. Whither Justice Kennedy? Kennedy is not just the Court's present swing vote. Political scientists refer to him as a "super median," the decider of majorities in almost every Roberts Court 5-4 decision--and especially those decisions with an ideological tint. What do his questions tomorrow suggest? Do we see the Kennedy of Bond v. United States, waxing rhapsodically about the significance of federalism to the preservation of individual liberty, and of Comstock, demanding something more rigorous than traditional rational basis review in determining the scope of Congress's authority under the Necessary and Proper Clause? Or do we see the Kennedy of Raich v. Gonzales, silently joining a lattitudinous majority opinion (written by Justice Stevens) that embraced an expansive vision of congressional power?
4. What does the Chief signal? This is the signal case of the Roberts Court, at least to date. And it conjures all of the values that Roberts has discussed as important to the Court, and the Chief's responsibility to steward the institution's national standing and prestige. It is unclear how committed Roberts is to federalism (as his joining Breyer's majority opinion in Comstock suggests)--in contrast, say, to the separation of powers and Article II. Moreover, Roberts might sense that the Court has a whole slew of other controversial decisions heading its way--from immigration, to affirmative action, to Section 5 of the Voting Rights Act, to the Citizens United sequel, to DOMA, to Prop 8 (to name a few). Roberts is apt to avoid signaling too much in his questioning; he knows the world will be watching (or at least listening). But is there anything that seems to suggest his underlying concerns about each side's arguments? Anything we can discern about his lean? Anything that suggests a predilection towards "judicial modesty," or instead a felt need to stand up for basic structural principles?
5. Does the taxing power question get any traction? This seems unlikely, but this just might be a convenient way for a reticent conservative to uphold the mandate. It is unclear that using the taxing power will often be practically (or politically) useful for Congress as a means of regulating conduct more generally. And if that is true, then upholding the minimum coverage provision under this power might have a lot fewer "troubling implications" for the scope of congressional authority. (I can already hear Randy Barnett saying that the implications would be far more troubling; but I'm not sure that is true, especially if Congress is generally reticent to impose taxes.) Again, this does not seem likely. But it is certainly possible.
I could go on. How engaged are the justices in the action-inaction distinction? To what degree do they care whether the regulated person has voluntarily subjected himself to Congress's regulatory authority? How much time do they spend on which market the minimum coverage provision regulates--the health insurance market or the health care services market? To what degree do they focus on the integral-to-a-broader-regulatory-scheme argument, as opposed to the economic-activity-in-its-own-right argument? We could go one all night. In the end, though, the limiting-principle and selection-of-means questions are likely to matter most.
Regardless, it should be a lot of fun.