Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As-Applied Challenges, Severability, and the Mandate
Tuesday’s argument on the constitutionality of the individual mandate was striking in many respects. First is the apparent skepticism that the five more conservative members of the Court displayed towards the constitutionality of the mandate. Although questions at oral argument do not necessarily reveal how the Justices will vote, these five seemed sympathetic to the claim that Congress cannot force individuals to engage in economic activity.
But equally striking, and too easy to lose sight of, is the key point on which all of the parties agree and the Justices appeared to accept: Congress can require anyone who is seeking healthcare services, and is therefore active in the healthcare market, to obtain insurance as the mechanism to finance those healthcare purchases---or pay an annual tax penalty. As Justice Kagan particularly noted, the issue here is simply one of timing. Those who oppose the mandate’s constitutionality say that Congress can only require purchase when an individual actually seeks healthcare, whereas those who support it contend that Congress can require purchase now because requiring purchase when someone shows up sick is infeasible. Critically, however, no one denies that Congress can require anyone actively seeking healthcare to buy insurance.
If so, the facial challenge to the constitutionality of the mandate being brought here has to fail. The Court has sometimes suggested that a facial challenge can only succeed if there’s no set of circumstances in which a challenged provision could be constitutional, and at other times said it’s enough if a statute lacks any plainly legitimate sweep. But under either standard, the facial challenge here can’t succeed, given the tens of millions of uninsured who access healthcare services each year (around 57% of the 40 million uninsured, according to a leading source of data on national medical spending).
The failure of the facial challenge here also follows from two key elements in the Court’s Commerce Clause jurisprudence going back to the New Deal: first, that Congress can regulate on an aggregate basis; second, that Congress’s power in regulating economic activity which substantially affects interstate commerce is plenary. This means that Congress can act to address the tremendous problem of cost-shifting caused by the uninsured in the aggregate, even if not every uninsured individual imposes costs, and does not have to tailor its regulations to suit the particular needs of the young and healthy.
As a result, if a majority of the Court concludes that the individual mandate is unconstitutional insofar as it forces people to buy health insurance before they have sought healthcare, then the Court’s proper path is clear. It should reject the facial challenge, and at most hold the mandate unconstitutional as applied to those individuals who do not use any healthcare. Happily for the Court, this approach also avoids the difficult questions surrounding how much of the Act to sever if the mandate is deemed unconstitutional. Such an as-applied approach handles all the severing that is needed.