Tuesday, June 26, 2012

Revisiting Roberts at oral argument

Given that we have every reason to believe that the Chief Justice is authoring the majority opinion for the Court on the constitutionality of the minimum coverage provision, it is worth revisiting what he said--every word he said--at oral argument that might be relevant. (If reading the second amended complaint in Thomas More Law Center v. Obama was worth my time, then surely this is.) So, below the fold, are all of Roberts's  substantive statements or questions relating to the individual mandate. (Omitted are his directions to counsel and his colleagues in the interests of policing the argument.) I trust all of you can recall or figure out the context prompting the Chief's comments or questions.

Questions for General Verrilli in 11-398:

"Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So, there's a market there. In some extent, we all participate in it. So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services. You can just dial 911 no matter where you are?"

"It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need, but when you do--and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it."

"That, it seems to me, is--and it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say 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. Well, a car or broccoli aren't purchased for their own sake, either. They're purchased for the sake of transportation or, in broccoli, covering the need for food. I don't understand that distinction."

"It's the means of satisfying a basic human need, just as insurance is the means of satisfying . . . ."

"The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits on the Federal power, as opposed to limits on the States, which was the issue in Lochner."

"Well, but it's critical how you define the market. If I understand the law, the policies that you're requiring people to purchase involve--must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment--substance use treatment or pediatric services, and yet that is part of what you require them to purchase."

"But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you're requiring people who are not--never going to need pediatric or maternity services to participate in that market."

"I think you're posing the question I was posing, which is that doesn't apply to a lot of what you're requiring people to purchase. Pediatric services, maternity services. You cannot say that everybody is going to participate in the substance use treatment market and yet you require people to purchase insurance coverage for that."

"Is your argument limited to insurance or means of paying for health care?"

"Well, now, why is that? Congress could--once you--once you establish that you have a market for health care, I would suppose Congress's power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be-- it would be going back to Lochner if we were put in the position of saying, no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways. I think that would be a very significant intrusion by the Court into Congress's power. So, I don't see how we can accept your--it's good for you in this case to say, oh, it's just insurance. But once we say that there is a market and Congress can require people to participate in it, as some would say, or as you would say, that people are already participating in it, it seems to me that we can't say there are limitations on what Congress can do under its commerce power, just like in any other area--given significant deference that we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way."

"Exactly. . . . That's the area that Congress has chosen to regulate. There's this health care market. Everybody's in it. So, we can regulate it, and we're going to look at a particular serious problem, which is how people pay for it. But next year, they can decide everybody's in this market; we're going to look at a different problem now, and this is how we're going to regulate it. And we can compel people to do things -- purchase insurance, in this case; something else in the next case--because you've--we've accepted the argument that this is a market in which everybody participates."

"Right. Right. That's exactly right, but it doesn't seem responsive to my concern that there's no reason--once we say this is within Congress's commerce power, there's no reason other than our own arbitrary judgment to say all they can regulate is the method of payment. They can regulate other things that affect this now-conceded interstate market in health care in which everybody participates."

"Unless I'm missing something, I think you're just repeating the idea that this is the regulation of the method of payment. And I understand that argument. It may be a good one. But what I'm concerned about is, once we accept the principle that everybody is in this market, I don't see why Congress's power is limited to regulating the method of payment and doesn't include as it does in any other area. What other area have we said Congress can regulate this market but only with respect to prices, but only with respect to means of travel? No. Once you're--once you're in the interstate commerce and can regulate it, pretty much all bets are off."

"Why didn't Congress call it a tax, then? You're telling me they thought of it as a tax, they defended it on the tax power. Why didn't they say it was a tax?"

"Well, that's the reason. They thought it might be more effective if they called it a penalty."

Questions for Paul Clement in 11-398:

"Well, Mr. Clement, the key to the government's argument to the contrary is that everybody is in this market. It's all right to regulate Wickard--again, in Wickard against Filburn, because that's a particular market in which the farmer had been participating. Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it."

Questions for Michael Carvin in 11-398:

"Well, surely regulation includes the power to promote. Since the New Deal we've said that regulation in -- there is a market in agricultural products; Congress has the power to subsidize, to limit production, all sorts of things."

"I don't--I don't think you're addressing their main point, which is that they are not creating commerce in--in health care. It's already there, and we are all going to need some kind of health care; most of us will at some point."

"Yet we don't know who they are."

"No, no, that's not--I don't think that's fair, because not everybody is going to enter the mortgage market. The government's position is that almost everybody is going to enter the health care market."