How Walter Dellinger and I Evaluated the Supreme Court Argument About the Individual Mandate on the Day it was Argued

Searching for something else, I came across this PBS News Hour appearance of mine with Walter Dellinger on March 27th, the day the individual insurance mandate was argued in the Supreme Court.  I was struck by how close we both were to the actual outcome of the case, even in the heat of the moment.  I begin, for example, by describing the division on the Court as 4 in favor and 4 opposed (though I don’t name the 9th justice, I believe I thought it was Chief Justice Roberts, not Justice Kennedy), and we both agree at the end that we don’t know from the argument how the case would be resolved.   I also made the point that upholding the mandate under the Commerce Clause would be far more dangerous than under the tax power (a point I had been including in my speeches after hearing Judge Brett Kavanaugh make a similar observation during oral argument in the Seven Sky case).

As it happened, and as I explain in a forthcoming article in the Florida Law Review, the mandate qua mandate was not upheld by Chief Justice Roberts under the tax power as the government and the concurring justices advocated.  Rather, what the statute dubs the insurance “requirement” was eliminated from the statute by a “saving construction,” leaving only a legal option to buy insurance or not, with an incentive to buy provided by a modest “penalty,” which was constitutional under the tax power only because it was not so punitive as to compel the purchase of health insurance.  (Yes, a nonpunitive “penalty” is problem, but that is a problem with the Chief Justice’s attempt at a “saving construction”;  it does not make the mandate qua mandate constitutional under the tax power.)  Unlike Justice Ginsburg and the three justices who joined her concurrence, the Chief Justice implied that such a coercive use of the tax power to mandate activity would also be unconstitutional.

Be this as it may, I thought readers might be interested in watching this 9 minute exchange.

Watch Is Health Law’s Individual Mandate Constitutional? on PBS. See more from PBS NewsHour.