What Does Chief Justice Roberts Think About the Mandate?

We will know, of course, in a couple of hours. But in all the commentary on the health-care cases, I do not recall seeing the following possibility explored (though surely someone else must have had this thought). So I wanted to flag the thought in case it does end up being expressed in the opinion. From his comments at the oral argument on the mandate, it is possible to read CJ Roberts as believing two crucial things about the mandate: (1) that a mandate to purchase certain kinds of health insurance – in particular, catastrophic coverage – would be constitutional, based on the government’s argument that enough of the uninsured will eventually consume these kind of medical services so that everyone is, indeed, in the market for these services at some point in time but that (2) the scope of the specific mandate in the ACA is overly broad with respect to this justification, because it requires some categories of people to purchase insurance for services they are almost certainly never going to use (pediatric care for people who are not going to have kids) or for services that are not random events but ones over which people have some control (coverage for substance abuse).

For someone who believes both of those things, what would that mean for the outcome in the case? I see two possibilities:

1. CJ Roberts could write an opinion establishing the principle that a mandate to purchase certain health-care services is constitutional under the commerce clause. He could then, however, hold the specific mandate in the ACA unconstitutional on the ground that it is not reasonably tailored to the specific justification the government offers for the mandate. The opinion would presumably assert that a high-level of constitutional scrutiny is required to justify the mandate, for reasons along the lines Justice Kennedy suggested at the argument, and that the mandate is unconstitutionally overbroad. This would leave open the possibility that a more narrowly drafted mandate, such as one tied to catastrophic coverage, would be constitutional. Of course, the current Congress is unlikely to generate any legislation that would in the short-term accept this invitation to craft a more narrow mandate. And I don’t know whether the health-care economics are such that a narrow mandate would achieve the necessary objectives if policymakers would seek to maintain guaranteed coverage and community rating. But in principle, this kind of opinion would leave the door open to future Congresses to adopt a more narrowly framed mandate.

2. More intriguingly, CJ Roberts could conclude that the mandate is not unconstitutional on its face. At this stage, the litigation involves what’s known as a facial challenge to the mandate; the claim is that the mandate is unconstitutional across the board and in essentially all its applications. In upholding the mandate on its face, CJ Roberts could conclude that the way to deal with the overbreadth of the mandate – if that’s the way he sees it – is to handle that in later as-applied challenges that would arise down the road, in which specific categories of individuals who claim that they will never need some of the specific services they are being asked to purchase would be able to make that claim and perhaps prevail with respect to certain categories of services.

The effect of this resolution would be to uphold the mandate for now but to have the courts carve down the scope of the mandate in later cases. One downside to this approach would be that it would spawn a good deal of litigation down the road and would create uncertainty in the health-care markets until the issues were resolved fully. On the other hand, one of the characteristic themes of the Roberts Court has been to resist deciding cases as facial challenges and to insist that more cases be handled as as-applied challenges. So such a resolution would be consistent with that larger set of jurisprudential themes.

3. I am not in the prediction business and this is not a prediction. But I have thought for a long time that this is an intriguing option I have not seen discussed elsewhere, and so I wanted to raise it in advance of the decision.

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