Why the Whole Health Care Law Is in Jeopardy

By Sean Trende - June 27, 2012

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By Sean Trende

The real Supreme Court news on Tuesday wasn't the Arizona immigration decision or even the summary reversal of the Supreme Court of Montana in the "Citizens United 2" case. It was that the chief justice of the United States didn't write any of these opinions.

This is critically important, because we can now deduce with a reasonably high degree of certainty that John Roberts is writing the lead health care opinion. If we are right about this, then the law is in even deeper trouble that most observers imagined.

Let’s start from the beginning. The Supreme Court tries to spread its opinions equally among the justices, both for the term and for its monthly sittings. There are three opinions left and, fittingly, three justices who have authored fewer than seven opinions: Roberts, Sonia Sotomayor and Clarence Thomas.

Roberts is the likely author of the health care decision for three reasons. First, Thomas is the only justice without an opinion from the December sitting, so he is probably authoring the First American opinion still outstanding from that sitting (and it unlikely that a staunch originalist like Thomas could hold together a majority on an issue like the health care law).

Second, it is unlikely that an opinion of this magnitude would trickle down to a junior justice like Sotomayor. The Alvarez opinion from February seems more appropriate for her.

Third, Roberts hasn’t authored an opinion from the March or April sittings. He’s the only justice of whom that can be said. This, more than anything, makes him the likely author of the only opinion outstanding from either sitting, the health care law.

If we’re right about this, then it’s a real problem for the Affordable Care Act. Justice Anthony Kennedy gave slight indications during oral arguments that he at least sympathized with the government’s position; Roberts did not.

Some have suggested that the chief justice would vote strategically. The idea is this: He is the last justice to cast his vote during conference. If there were four votes to strike down the law, then he would provide the fifth to do the same. But if five votes had been cast for the law, Roberts would then cast a sixth vote in favor.

This would allow him to write the opinion either way, and to control how broad the opinion emerging from the court was. This is what Chief Justice William Rehnquist was suspected of doing in 1999 in United States v. Dickerson. He had been an ardent foe of Miranda, and most thought that he was a sure vote to overrule it when given a chance. But he surprised people by announcing a 7-2 decision upholding Miranda.

But there is a problem with this analogy. The task of assigning the author of an opinion falls to the most senior justice in the majority. Had Rehnquist dissented in Dickerson, the most senior justice in the majority would have been John Paul Stevens. Rehnquist had reason to fear that Stevens would assign the opinion to himself. Because Stevens was the most liberal member of that court, and given some of the nuances of Dickerson, Stevens could have gutted decades of decisions chipping away at Miranda if he had written a broad enough opinion. The chief justice’s incentives to write the opinion at all costs were fairly high.

Absent Roberts, the most senior justice in a majority to uphold the law -- who would presumably assign himself the opinion -- would be Kennedy. But Kennedy is actually fairly conservative on federalism issues. He joined the opinion of the court in United States v. Lopez and United States v. Morrison, two critical Commerce Clause cases. Even if he wanted to uphold the health care law in its entirety, it’s unlikely he would write an opinion that would set the stage for overruling those other decisions. In other words, Roberts doesn’t have the same incentive that Rehnquist might have had to vote strategically. (In fairness, we should also bear in mind that Rehnquist might have voted sincerely in Dickerson.)

So, do I see any chance at all that the law will be upheld? Yes, and here’s why: First, oral arguments are not dispositive, and I think conservatives have been irrationally exuberant over the tone of those arguments. The Arizona immigration decision and the juvenile life-without-parole cases looked to be in real trouble post-argument, and yet both turned out fairly well for liberals.

Indeed, even votes cast at conference aren’t dispositive. Most famously, Kennedy is reported to have changed his vote in Planned Parenthood v. Casey very late in the opinion-writing process. Regardless, we can’t really write off the possibility that the chief justice simply believes the law is constitutional -- the question does, after all, split conservative legal scholars.

Second, Justice Scalia’s dissent in the immigration case caught my attention. In 2000, a co-worker of mine who had clerked for Scalia pointed to this gratuitous concurrence in NFTC v. Crosby as a sign of future losses for conservatives. Sure enough, bad losses followed in the partial-birth abortion decision and a major school prayer case.

Since then, I have noticed that Scalia’s opinions do, in fact, become more caustic when things aren’t going well for conservatives. So it seems noteworthy that his scathing dissent in Arizona v. United States dwelled at length on the erosion of state sovereignty, which is really at the core of the conservative argument against the individual mandate. Is this a sign of his frustration with the way things are going on the health care law?

If this seems like thin gruel to you, I concur. I wouldn’t give more than a 15 to 20 percent chance of the Affordable Care Act being upheld. And even that slim chance really is more a nod to the fact that we don’t know what is going on in the justices’ heads, so even when all the evidence points one direction, we have to leave some room for the opposite outcome.

I won't dwell on the arguments for and against striking down the individual mandate, which have been beaten to death by this point.  But I do wish to emphasize that there’s also a substantial chance that the court will strike down the entire law, contrary to what almost all news outlets have reported recently. This issue turns around the arcane question of severability, and there’s a reason CNN Legal Analyst Jeffrey Toobin called the arguments on this issue a “plane crash” for the government (as opposed to a mere “train wreck” after the arguments on the mandate).

Basically, laws typically include a severability clause specifying that if any portion of the law is struck down as unconstitutional, the remainder should survive. But Congress didn’t include a severability clause in the health care law.

The good news for liberals is that the court typically maintains a presumption in favor of severability. In other words, even if there isn’t an explicit severability clause, it will nevertheless sever the unconstitutional portion if it feels it can do so without affecting the rest of the law. This makes eminent sense; if it finds an abortion rider to the HHS appropriations bill unconstitutional, there’s no reason to say that Congress can’t spend money on, say, Head Start, since Congress pretty clearly wouldn’t have intended for the two issues to either rise or fall together.

But the health care law is a much closer call. During the run-up to enactment, it was depicted as a series of interlocking parts: Guaranteed issue meant that anyone was eligible to purchase insurance, making universal coverage possible. The individual mandate meant that the so-called “death spiral,” where people wait until they are sick to purchase insurance due to guaranteed issue, thus driving up costs, would not occur. The subsidies enabled people to comply with the mandate. The exchanges allowed market forces to control costs after all of these regulations were implemented.

It isn’t at all clear how well these other pieces work without the individual mandate, nor is it obvious how the justices are supposed to decide what stays and what goes. There are congressional findings, for example, suggesting that the mandate is essential for the proper functioning of the exchanges, but there are also reasons to believe that the exchanges could still function well -- albeit not perfectly -- without the mandate. There are also items such as the Black Lung Benefits Act, which plainly could operate without the mandate. So once the court starts down the road of striking down things other than the mandate, it really has to go through a 2,700-page bill and make hundreds of judgment calls as to what stays and what goes. .

I think there are two main reasons that the court might choose not to infer severability and either throw out the entire law, or throw out Title I (and possibly Title II), effectively gutting the bill. First, the government let the proverbial camel’s nose under the tent: It conceded that if the court threw out the mandate, then a few other provisions, such as guaranteed issue and community rating, would have to go as well. 

The problem is, once you’ve conceded that the court has to go down this road in some cases, the justices have a much harder time drawing a principled line in the sand as to where they should stop.

Second, and relatedly, having read the transcripts, I don’t see much evidence suggesting that the five justices believed they could decide which pieces to throw out and which to keep. Consider the following colloquy:

JUSTICE ALITO: Well, if that is true, what is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?

DEPUTY SOLICTOR GENERAL EDWIN KNEEDLER: Congress did not think of those things as balancing insurance companies. Insurance companies are participants in the market for Medicaid and -- and other things.

JUSTICE KENNEDY: But you are saying we have the expertise to make the inquiry you want us to make, i.e., the guaranteed-issue, but not the expertise that Justice Alito’s question suggests we must make.


JUSTICE KENNEDY: I just don’t understand your position.

And so it went. The questions directed at Paul Clement (representing the plaintiffs in the case) didn’t push him at all on the substance, they simply pressed him on exactly what test the court should apply. Again, we can’t know when the justices were playing devil’s advocate, and when they were expressing their “true” views. But the evidence that they won’t sever the law is substantially greater than the evidence that they would uphold the entire thing.

Two arguments are typically presented in response. First, that Chief Justice Roberts is concerned about the court’s credibility. I do think that is the case, but I also think he can read a poll as well as anyone else, and the polling suggests that the American people are at the very least comfortable with the idea of striking down the law in its entirety. While the legal academy might be up in arms, the American people wouldn’t view striking down the law as another Bush v. Gore.

The second argument is that Justice Kennedy wouldn’t want to go down this road. This badly misreads him. Kennedy was typically lumped in with Justice Sandra Day O’Connor as a moderate. Kennedy is a centrist, but in the sense that libertarians come out as centrists on typical political ideology tests. Kennedy is not squishy -- he is heterodox, and he isn’t afraid to author broad opinions taking strong stands. If he thinks the whole law has to go, he’ll vote to knock out the entire law.

At the end of the day, this really is like Kremlinology -- trying to deduce the inner workings of a hermetically sealed institution. There’s substantial uncertainty here. I do think the most likely course of action for the court is striking down the mandate and related insurance provisions, simply because of the tendency to presume severability and the closeness of the question. But it is a close question. 

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Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at Follow him on Twitter @SeanTrende.

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