Lawrence Person's BattleSwarm Blog

Given his background as both Solicitor General and a former fellow at the Texas Public Policy Foundation‘s Center for Tenth Amendment Studies, I was hoping to provide a mini-interview with Ted Cruz on the constitutional issues surrounding ObamaCare, but so far he has been too busy on the campaign trail to get back with answers. Fortunately, the current TPPF Center for Tenth Amendment Studies Director (and frequent National Review contributor) Mario Loyola was able to step up and answer some of the same questions.

My questions are in italics.

1. In the ObamaCare case the Supreme Court agreed to review, Florida vs. U.S. Health Department, Judge Roger Vinson ruled both that the individual mandate was not constitutional, and that ObamaCare was not severable, i.e. if any part of the law was ruled unconstitutional, all of it was unconstitutional. The 11th Circuit agreed that the individual mandate was unconstitutional but partially reversed Vinson by saying that it was severable from the rest of ObamaCare. Are the various clauses of ObamaCare severable, and have the courts previously ruled on the severability of law where no such severability was enumerated in the original statute?

The chief modern Supreme Court case on severability is Alaska Airlines v. Brock (1987), which held that when one part of a law is found to be unconstitutional, the remainder will be upheld if (1) it will be “fully operative” as a law, unless (2) it is evident that Congress would not have enacted the remainder without the invalid part. In our Supreme Court amicus curiae brief on this issue, we argue that the Court should conduct a thorough analysis of statutory interactions, in order to understand how the insurance “reforms,” Medicaid expansion, and premium subsidies (essentially, Titles I and II of the ACA) were all interrelated with the individual mandate in the original legislative bargain. Without the mandate, these other provisions will not function as Congress intended and would never have passed.

For example, at the heart of the ACA is its provision for “guaranteed issue” of health insurance, which requires health insurance companies to provide insurance for all applicants regardless of health status. In a pure “guaranteed issue” scenario, healthy people have an overwhelming incentive to drop their health insurance and wait until they are sick to get it. As healthy people leave the rolls, the per-unit cost of insuring the remaining pool of (riskier) insured rises, which pushes premiums up, which in turn drives more healthy people off the rolls. In the end, the only people who enroll are those who are actually sick, such that premiums approach the actual cost of health care. Under such a scenario, the insurance industry eventually collapses. The mandate is designed to prevent this adverse selection spiral by forcing everyone to have health insurance. Without the mandate, the insurance reforms won’t function as intended, and the resulting law is one that Congress never would have passed.

2. Do recent cases like U.S. vs. Lopez and Seminole Tribe vs. Florida indicate that the Roberts Supreme Court has retreated from the high water mark of expansive interpretation of the Commerce Claus in Wickard vs. Filburn?

Lopez punctured the common perception after Wickard that Congress could regulate whatever it wanted. But Lopez unfortunately embraced the logic of Wickard, and thus did little to restore the pre-New Deal balance. Lopez stands for little more than the nearly naked assertion that the commerce power must have some limit, and even that modest proposition is almost impossible to square with Wickard.

The difficulty for the Court here is that Wickard’s central doctrine – that Congress can regulate purely intrastate or non-commercial activity so long as it has “substantial effects” on interstate commerce – has no logical stopping point. If the federal government can regulate any class of activity with a “substantial effect” on interstate commerce, it can regulate virtually all activity. The Supreme Court is unlikely to use this case as an opportunity to overturn Wickard, but it shouldn’t extend such a flawed precedent into the wholly unprecedented arena of forcing individuals to engage in certain activities in order to conscript them into the service of a federal regulatory scheme.

3. From at least Lopez onward, Justice Clarence Thomas has been one of the leading voice for both constitutional originalism in general, and of a less expansive reading of the Commerce Claus in specific. Do you think his arguments have influenced judicial thinking in general, and his fellow Supreme Court justices specifically?

Justice Thomas has been the most consistent of the justices in adhering to originalism as a method of interpreting the Constitution. If you look at Jan Crawford Greenberg’s book Supreme Conflict, it’s clear that Thomas’ convictions have affected the other justices, particularly the other justices among the Court’s so-called conservative block.

4. Justice Anthony Kennedy is often considered the “swing vote” on the Supreme Court. Do you think Kennedy is receptive to constitutional originalism in general or a less expansive interpretation of the Commerce Claus specifically?

The important thing to understand about Justice Kennedy here is that he is at heart a federalist. He is very concerned about maintaining the Constitution’s system of dual sovereignty and is skeptical of federal actions that encroach on traditional state prerogatives. You can see this in his concurrence in Lopez, as well as in his other writings. As Justice Kennedy notes in Lopez, democracy can only function if elected representatives are accountable to the people. When the federal government impinges upon areas that have been traditionally left to the states, this undermines democratic accountability by clouding the issue of who is ultimately responsible for a given law.

Thanks to Mr. Loyola (and to TPPF) for taking the time out of his busy schedule to answer these questions. Yesterday I linked to his primer on the issues. Here’s Loyola, Richard Epstein, and Ilya Shapiro (talk about your legal power trios!) on why the individual mandate is not severable from the rest of ObamaCare.