The Political Freakshow

Yet another prominent conservative legal scholar has stepped forward to urge the Supreme Court to uphold health care reform as firmly within the court’s precedents.

In a column published on The New Republic’s website, Henry Paul Monaghan, a professor of constitutional law at Columbia Law School, applauded the Supreme Court’s conservative justices for their aggressive questioning of Solicitor General Donald Verrilli during oral arguments three weeks ago, but went on to “submit that sustaining the mandate would not give rise to the justices’ fears of boundless federal authority.”

Moreover, the market for health care is distinctive (if not entirely unique) in several key respects. Virtually all of us will need and obtain health care at some point, but we often cannot predict when or in what ways we will need it. And for the vast majority of us, direct payment for the health care services we obtain would be prohibitively expensive. Yet not obtaining needed medical care can be the difference between life and death.

These features help explain why, unlike many other markets, insurance is the overwhelmingly dominant means of payment in the health care market. They also explain why Congress has required that individuals be given emergency care without regard to their ability to pay. As a result, and again unlike other markets, uninsured individuals who are unable to pay directly for needed medical services necessarily shift the cost of those services to others — to health care providers, the government, individuals with insurance, and taxpayers.

In that way, Congress is not creating a market which it then seeks to regulate. The insurance-based structure of the health care market is already firmly in place. That is why it was well within Congress’s discretion to design legislation to operate within, and to address problems posed by, this vast market.

Monaghan’s arguments echo not only those made by the federal government in its briefs and at oral argument, but also those of the handful of other Reagan-era graybeards of the conservative legal movement who have backed Obamacare’s constitutionality in the two years leading up to the Supreme Court’s review. And as The New Republic’s Jonathan Cohn points out, Monaghan’s conservative credibility is rock solid:

In 1985, Monaghan wrote a widely read and cited essay called “Our Perfect Constitution” that was critical of activist judges who used the document to justify expansions of individual rights. In 1986, he testified before the Senate Judiciary Committee on behalf of Robert Bork, the arch conservative that former President Reagan tried (and failed) to place on the Court. In the fall of 2010, Monaghan defended the Court’s decision in the Citizens United case, which overturned part of the McCain-Feingold campaign law.

What makes Monaghan’s piece unique, however, is that it comes after the oral arguments in which the conservative justices upended conventional wisdom in their apparently enthusiastic embrace of the position put forward by the mandate’s challengers, despite the calls for restraint coming from right-of-center jurists who made their names decrying judicial activism.

Between the lines, Monaghan’s focus on the unique nature of the health care market reads like a direct appeal to Justice Anthony Kennedy, who has never fully embraced judicial restraint as a core principle. Indeed, Kennedy appeared to lean heavily toward striking down the mandate at the oral argument before wavering at the very end.

“I think it is true,” Kennedy said, “that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.”