bjbjLULU JEFFREY BROWN: And we return to today's Supreme Court argument and its central debate:
Is a mandate constitutional?
For that, we're joined by two legal scholars who were in the court today.
Walter Dellinger served as solicitor general in the Clinton administration.
He filed a brief before the court on behalf of Democrats in Congress.
Randy Barnett has helped shape the argument against the mandate and serves as counsel
for the National Federation of Independent Business, one of the principal plaintiffs
before the court.
He's a professor at the Georgetown University Law Center.
Welcome to both of you.
WALTER DELLINGER, former U.S. Solicitor General: Thank you.
JEFFREY BROWN: Since you were both there -- Randy Barnett, I will start with you -- what jumped
out at you about today's argument?
RANDY BARNETT, professor, Georgetown University Law Center: Well, unlike yesterday, where
it really looked like the court was pretty unanimous on the question of whether the Anti-Injunction
Act was going to bar them from hearing the merits of the case, today, it looked like
the court was very equally divided.
I think you had four justices who were training most of their fire, for example, on the government's
side, and not as much fire on our side.
And we had four justices training most of their fire on our side, and not all that much
on the government's side.
And that just looked like a divided court, rather than the court like -- that yesterday
seemed pretty much on the same page.
JEFFREY BROWN: Walter Dellinger?
WALTER DELLINGER: Well, I was struck by the fact I think that both the chief justice and
Justice Kennedy seemed to have some concerns about each side's arguments.
I think probably most significant was the fact that the solicitor general said there
are limits, that you can uphold a law which helps extend insurance coverage to 30 million
Americans without giving Congress the authority to require purchases of people who are not
in commerce, because -- and I thought both the chief and Justice Kennedy understood this
-- because people will inevitably be in the market for health care.
The other side had conceded that you could require insurance at the time you access your
health care.
The government s just giving an incentive to have that insurance earlier.
And I think the fact that that commerce is inevitable is a distinction that got some
traction with the court.
JEFFREY BROWN: Well, so take us to the key element here.
You -- as I said, you helped shape some of these arguments.
What is the key argument, the nub of the argument against the constitutionality?
RANDY BARNETT: Well, first of all, there's like -- it's unprecedented, it's unlimited
and it's unnecessary.
And it was -- and the fact that it was unprecedented I think was sort of borne out today.
No justice, no matter what side they were on, and no counsel cited an example of the
exercise of this kind of power in our history, that's making people buy a product or service
that -- from a private company.
So the unprecedented nature is something that Justice Kennedy started off with and then
basically said, given that this is a new important power, aren't you, Solicitor General, under
some burden to justify that power?
So it's that.
It's uncabined, in so far as I think that the.
. . JEFFREY BROWN: Uncabined being a legal term.
RANDY BARNETT: Unlimited.
Sorry, unlimited.
I have to remember that.
JEFFREY BROWN: Yeah.
RANDY BARNETT: So it's unlimited in so far as all the justice were pressing the solicitor
general to explain what the limits are.
And you have heard Walter's description of that to some degree.
And so they're concerned about whether there is any limit on the power to impose mandates.
And then Justice Kennedy also made the argument that it in some respects is unnecessary because
Congress does have a tax power that it could have used to solve many of these problems,
but it chose not to.
So why should this power then be exercised in this case, this new power, be discovered?
JEFFREY BROWN: All right, so from the other side.
WALTER DELLINGER: I think it's not that attractive a proposition to tell Chief Justice Roberts
that the only way you can deal with a national problem of 30 million uninsured people is
by having a monolithic national tax and agency solution like The New Deal.
And one reason it's novel is that we're using a more conservative approach that was recommended
by conservatives of using the existing private market and giving people an incentive to engage
in commerce.
I think in some ways, the most significant moment came yesterday when the solicitor general
was asked, suppose you decide you don't want to comply with the mandate and buy insurance,
you're just going pay the $95 penalty the first year, it never goes higher than 2.5
percent of your income.
Are you a law-breaker?
What if you're asked, have you ever violated the law?
And the solicitor general said unequivocally you can say no.
In other words, this is just a relatively modest financial incentive to have insurance
coverage.
And what struck me was everybody in the courtroom, every justice, every advocate, every journalist,
they all have health insurance, and they wouldn't dream of doing without it.
So the idea that pushing people through this tax incentive to have coverage is an incursion
on liberty seems odd.
JEFFREY BROWN: Well, what about that?
But also you mentioned Justice Kennedy.
We have had -- there was of course a lot of focus on him.
And we quote -- we heard him say this reference to the heavy burden of justification.
But later on, he also suggested that people who don't carry health insurance are still
engaged in the health care market, which would support your side of things.
RANDY BARNETT: No, I agree with Walter.
I think Justice Kennedy asked questions of both sides, including that question.
JEFFREY BROWN: Right.
RANDY BARNETT: And if that's really -- if that's the predictor of where he's going to
go in this case, then Walter ought to be happy.
But I do think one of the things I just want to say in response to what Walter said about
the modest financial penalty that is in this case, if this is recognized, if this new power
to mandate economic activity is recognized as a Commerce Clause power, there's no reason
why in the future it's going to be limited to small monetary fines.
It could be including imprisonment for failing to perform the mandates that Congress wants
to impose upon us.
And that's what differentiates this is from the tax power, where the only consequence
of giving up a tax subsidy is financial.
JEFFREY BROWN: Well, that's what it goes to, all these analogies we heard Gwen referring
to, and every justice is trying to give an example, right, of where the limits are.
WALTER DELLINGER: Right.
To me, the most critical question was the chief justice's.
He -- he believes -- he understands the government's argument that people are going to inevitably
need health care, but, he said, they're not going to need some of these preventative services.
They are not going to need -- necessarily need mammograms or cancer tests.
And you're forcing them in that case to use a commerce they may not obtain.
And I think the answer to that is that that's a decision made by Congress, because if you
funded catastrophic care without funding preventative care, you create a perverse incentive that
people avoid getting mammograms, and then you wind up having the insurance company or
the government pay for breast cancer surgery or -- and metastasized breast cancer.
So it's part of a package that makes sense to Congress.
And, here, I think that is why the deference is called for.
JEFFREY BROWN: Yeah.
I mean this is probably an unanswerable, provocative question, but how settled is the law?
What are the justices looking at, without going back through all of the judicial history?
But you said the case is unprecedented -- or the law is unprecedented.
RANDY BARNETT: This is one of those very unusual cases -- in fact, the Heller case is another
one of these unusual cases -- that Walter argued -- where we really here are in more
or less a case of first impression, because an economic mandate of this sort has never
been used before.
In fact, I can prove that, because, if it had been, you d know, the contracts the government
makes you enter into or pay a penalty to the IRS, and since you don't know of any such
contracts, I can assure they don't exist.
Your parents didn't know of any such contracts.
So, because it's a case of first impression, there is no direct precedent that says Congress
may do this or Congress may not do this.
And that's the reason why the argument takes on the coloration that it does.
JEFFREY BROWN: Do you agree with that, that the court does not have precedents to look
at?
WALTER DELLINGER: I think precedents are not going to govern the case in that sense.
But in this case, the question is simply whether this is a regulation of commerce among the
states.
And the government can say it's not a regulation of local matters, it's not a regulation of
local violence, it's not a regulation of guns in your schools.
It's a regulation of one-seventh of the national economy.
So the burden ought to be on those who would argue that it's somehow not a regulation of
commerce for Congress to deal with something which is so integral and central a part of
the national economy.
Both sides are making arguments I think that haven't been made before.
JEFFREY BROWN: Just real briefly, because you have both been before the justices, you
have had this experience, it's worth saying that these questions don't help predict what
the final votes are going to be, for the most part?
RANDY BARNETT: I don't know.
You do walk out the door with a certain feeling.
I think we all walked out the door yesterday thinking the court wasn't going to fail to
reach the merits because of the Anti-Injunction Act.
I think most people walked out the door thinking, wow, this is a close case.
WALTER DELLINGER: Sometimes, you can tell.
Sometimes, you can't.
This is one where you can't tell because the chief justice and Justice Kennedy certainly
asked hard questions of both sides.
So I think, at the end of the day, you don't know what the outcome is going to be.
We ll find out in June.
RANDY BARNETT: Well, I agree with that.
JEFFREY BROWN: Okay, some agreement.
Walter Dellinger, Randy Barnett, thanks, both.
WALTER DELLINGER: Thank you.
JEFFREY BROWN: Online, we have extensive coverage of the health care reform law, and you can
listen to the audio of today's arguments or read the transcript.
We also have interviews with people who traveled to Washington to voice their opinions, pro
and con, on the law.
Plus, you ll find a post from Susan Dentzer on what happens if the individual mandate
is struck down or takes effect.
And Marcia Coyle's primer for tomorrow's session will be posted in the morning.
That's all at NewsHour.PBS.org.
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