Tuesday, March 27, 2012

My take on today's oral argument in the ACA case (if anybody cares)

Mark Tushnet

Reading the transcript, I was struck by several things:

1. Carvin’s argument was truly dreadful – or, put more politely, he made no effort to allay expressed concerns that his approach would undermine a great deal of settled law (as against Clement’s emphasis on how unprecedented Congress’s action was, with the implication that finding the mandate unconstitutional wouldn’t do that). I understand the point he was trying to make about Morrison, but he made it in a way that I think comes across as almost flippant, with Justice Scalia coming in for a half-hearted save (or so it reads to me).

2. The Chief Justice’s questions – for whatever weight one gives to questions – are systematically favorable to the government’s position, stating it clearly and forcefully, and asking what’s wrong with that argument.

3. Particularly in the first hour, a fair number of the questions indicate a basic misunderstanding about how insurance works, as a payment based on actuarial calculations of risks and realized costs over some defined population, rather than as a prepayment of actual realized costs determined on an individual basis. The “over some defined population” point is important, indeed central, but lots of the questions seemed to me not to understand it.

4. Related (because of the guaranteed issue and other "insurance" provisions of the statute), and probably most striking, was the distance between the coherence of the arguments as laid out in the briefs, and the pretty rambling discussion in the oral arguments, especially in the first hour. It’s almost as if the justices hadn’t really focused on the arguments in the briefs, but were winging it in an odd sort of way. At a couple of points Justices Kennedy and Scalia sidled up to the “it might be necessary but it’s not proper” argument, but it got away from them pretty quickly.

5. I thought the SG did a reasonably good job of offering a limiting principle, which would have been more effective had he (or the justices) had the briefs’ analytic structure at hand. The principle is that the market for health insurance is different from ordinary product markets because of the moral hazard problem arising from the (unquestionably constitutional) guaranteed issue requirement. (That’s certainly good enough to deal with the Chief Justice’s “cell phone” hypothetical – no market unravels if people try to purchase cell phones as they are being carjacked – and I think that the right answer to Justice Alito’s burial-insurance question is that the burial insurance market might have – but it might not have – similar moral hazard problems.) The only question is not whether the SG offered a coherent distinction between the health insurance market and other markets – *a* limiting principle – but whether someone’s going to find the distinction adequate. (It’s not a Drew-Days situation where Days couldn’t offer, in Lopez, any limiting principle; here there’s one on offer, so the question is whether the only demand in the case is for a limiting principle, or rather is for a “good” or “strong” or something like that limiting principle.)

Maybe these points will come out more clearly in tomorrow's severability argument, where the connection between the insurance provisions and the mandate is the predicate for the discussion.

6. My personal reaction to Justice Scalia’s interventions is that he came across as a grumpy old man. I thought that his “blue eyes” response to the SG’s offer of “the health insurance market is different” response was particularly tired.

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