Clement’s brief cites “(Kennedy, J. concurring)” 10 times; “(Scalia, J. concurring)” twice, and the rest of them nada. The argument in which “(Scalia, J. concurring)” is embedded is a truly pathetic piece of sophistry [pp. 34-35]:
The problem with the guaranteed issue and community ratings provisions is not that they would be ineffective without the individual mandate. Quite the contrary, the problem is that those provisions would work far too well—many would “tak[e] advantage of” those guarantees by “‘wait[ing] to purchase health insurance until they needed care.’” Govt.’s Br. 29 (quoting ACA § 1501(a)(2)(I)). Congress deemed the mandate necessary to counteract the effectiveness of those provisions by forcing individuals to purchase a product they may neither want nor need. The Constitution authorizes Congress to “carry into Execution” its enumerated powers, not to expand its enumerated powers by creating problems in need of extraconstitutional solutions. See Raich, 545 U.S. at 38 (Scalia, J., concurring) (“the power to enact laws enabling effective regulation of interstate commerce … extends only to those measures necessary to make the interstate regulation effective”).
Clearly, the distinction between the guaranteed health insurance (creating the problem) and the individual mandate (the extraconstitutional solution to the problem created by the guarantees) is forced. There is no jurisprudential reason not to see skyrocketing healthcare costs as the problem, and guaranteed health insurance (regulation of healthcare market) plus individual mandate (essential to regulation of healthcare market) as the solution.
Of course, this just highlights, what comparing cites to Kennedy and Scalia already suggest, that Clement has either given up on Scalia (sees no way to reconcile (Scalia, J. concurring) in Raich with the unconstitutionality of the individual mandate) or assumes he is on board.
For my money, Clement’s effort to woo Kennedy is about the best anybody could do with the materials at hand. It is extraordinarily well-crafted. Here’s a very extensive excerpt of the core of the argument:
Economic or not, a “decision” whether to purchase a good or service cannot plausibly be construed as “commerce in the ordinary and usual sense of that term.” Lopez, 514 U.S. at 583 (Kennedy, J., concurring). Congress instead asserted control over such decisions through its third and most attenuated category of Commerce Clause power: “the power to regulate activities that substantially affect interstate commerce.” Gonzales v. Raich, 545 U.S. 1, 17 (2005).
[T]he modern-day breadth of the substantial effects doctrine and the deference it affords Congress only make the problem [of limitless federal power to compel people to enter markets] more acute. Unless the Court wants to get into the business of second-guessing congressional determinations as to which “decisions” have a sufficiently “tangible, direct, and strong” effect on interstate commerce to count, Govt.’s Br. 23, there would be almost no end to the “economic decisions” that Congress could compel. To pick an example from the “health care services” realm, some of the high costs generated by emergency dental care could have been prevented by regular trips to the dentist’s office. The dynamic involves the same cost-shifting potential arising from the humane impulse not to deny care in emergency situations that the federal government suggests makes the mandate unique. It would hardly be “irrational” for Congress to attempt to reduce that burden on the health care services market by mandating that everyone visit the dentist twice a year.
And the potential to eliminate that kind of indirect burden on the health care services market is nothing compared to Congress’ ability to employ this new-found power to compel economic decisions in more obviously economic markets. Problems in the automobile industry could be solved by mandatory new car purchases. The congressional interest in ensuring the viability of the agricultural industry, which has typically been addressed through subsidies, could be furthered instead by compelling the purchase of agricultural products. Individuals’ surprising unreceptiveness to substantial incentives to invest in 401(k) accounts could be overcome by mandating such investments. And so on. Most economic problems involve questions of demand and supply, and if Congress has the power not just to regulate commercial suppliers and those who voluntarily enter the market, but to compel demand as well, then we have truly entered a brave, new world. The possibilities are quite literally endless.
This basic argument — the “broccoli objection” — has been around from close to the start. This is the best presentation I have read. The examples are extremely well chosen, and pointing out that if the mandate is authorized then all future mandates will have to be subject to rational basis review, thereby effectively removing them from judicial review, strikes me as well-tuned to Kennedy’s pragmatic interest in ensuring that doctrinal regimes are judicially administrable. Clement’s focus on the but there are political checks response to the broccoli objection, a response that strikes me, personally, as quite plausible, is also well done:
While the unpopularity of these potential mandates may put some check on their proliferation, that is not a sufficient answer. This Court has steadfastly declined to step aside and leave enforcement of the Constitution’s critical structural protections to the political process. See Lopez, 514 U.S. at 578 (Kennedy, J., concurring) (“[T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scale too far.”). And here, part of the perniciousness of the individual mandate is its tendency to undermine the healthy democratic restraints on government action. While taxpayers can be expected to resist new taxes and insurance companies can ordinarily be expected to resist burdensome new regulations, the mandate ensured the quiescence of the latter (forced purchases are good for business, after all), while cloaking the burden on individuals in terms that avoid the politically unpopular nomenclature of new taxes. Indeed, it is hard to imagine what regulations the automobile industry would not accept in exchange for a car-purchase mandate or what rules dentists would not embrace for a federal mandate of twice-annual visits.
Although I’m not sure how impressed Kennedy will be with Clement’s skepticism about the efficacy of Due Process Clause checks, in light of Kennedy’s apparent view that Due Process skepticism sounds in a “jurisprudence of doubt” (where liberty can find no refuge) — which apparently is a bad thing.
Confronted with the irrefutable implications of its logic, the federal government elsewhere has “concede[d] … the lack of any doctrinal limiting principles” on its theory, Seven-Sky, 661 F.3d at 14, and does not attempt to identify any now. It instead simply insists that concerns about Congress’ ability to compel countless actions with economic consequences are beside the point because they “‘seem more redolent of Due Process Clause arguments’ than any principled enumerated powers analysis.” Govt.’s Br. 51 (quoting Seven-Sky, 661 F.3d at 19). The federal government severely misunderstands the purpose of the enumeration of powers in the Constitution.
“Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity.” Bond, 131 S. Ct. at 2364. By delegating to the federal government powers “few and defined,” and reserving to the States powers “numerous and indefinite,” The Federalist 45 at 313, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York, 505 U.S. at 181. In “denying any one government complete jurisdiction over all the concerns of public life,” and limiting the most pervasive powers to governments closer to the governed, “federalism protects the liberty of the individual from arbitrary power.” Bond, 131 S. Ct at 2364. Thus, the argument that Congress has exceeded its enumerated powers and the argument that Congress has encroached upon individual liberty are, in fact, one and the same.
To be sure, the Due Process Clause and other amendments serve as essential backstops when the Constitution’s structural protections fail to prevent such encroachments. But the mere presence of those additional restraints on federal power does not mean “that the Constitution’s enumeration of powers does not presuppose something not enumerated.” Lopez, 514 U.S. at 566. Indeed, the framers were acutely aware of that flawed argument and drafted the Ninth and Tenth Amendments to guard against it. See The Federalist No. 84 at 573–74 (A. Hamilton) (arguing that a bill of rights was “unnecessary” and “dangerous” because it “would afford a colorable pretext to claim more [powers] than were granted”). To require resort to the murky doctrine of substantive due process to impose any meaningful limits on the commerce power would deprive of all meaning the structural protections that those amendments were enacted to reinforce.
This is the crux of the brief, in my view.