Some say that the challengers to the individual mandate can win even if they lose on the merits. That is, they can win the broader battle for public opinion even if they lose in the Supreme Court. I think that’s right. This kind of win is a common goal of public impact litigation. But the strategy thus far pursued by the mandate challengers differs from the strategy one often sees in such litigation. A typical strategy focuses on real people and the effect of the challenged rule on them. Not so the individual mandate challenges.
In a recent post at The Volokh Conspiracy (“Public Opinion, the Individual Mandate, and the Supreme Court”), Ilya Somin compares the potential backlash that could be generated by a Supreme Court decision upholding the constitutionality of the mandate with the backlash generated by the Kelo case. The Supreme Court held in Kelo that government can use its power of eminent domain to take the property of an individual for use in a private party’s redevelopment efforts. The idea was that this would serve a “public use” by generating more tax revenue. One of the strategies of the challengers in Kelo was to highlight the plight of a particular individual, Susette Kelo, showing how the government was going to affect her life by taking her house away.
Contrast this strategy with that pursued by the individual mandate challengers. They have focused on the deprivation of liberty inherent in being ordered by the federal government to enter into, and stay in, an economic relationship with another private party. But this focus has not involved real people. Perhaps understandably, the mandate challengers have thus far chosen not to focus on the plight of particular individuals. Some may have read news stories about Kaj Ahlburg, one of the original plaintiffs, and others may have read stories about Mary Brown, another one of the original plaintiffs. But nobody knows much about Dana Grimes and David Klemencic, who were added to the case at the Supreme Court level. The reality is that, after two years of litigation, we don’t know much about any of the individual mandate challengers.
It could be that the more we find out about their personal circumstances, the less plausible their challenge to the mandate becomes. What has been learned thus far has benefitted the federal government. Most notably, a story in the Wall Street Journal highlighted the personal circumstances of Mary Brown, who filed for bankruptcy and included unpaid medical bills in her list of outstanding debts. Seizing on this fact, the federal government pointed out in a brief filed with the Supreme Court that the likelihood of an individual having significant unpaid medical bills is much lower if that person has private insurance to cover their significant medical expenditures. This story shows how learning about a particular individual challenger’s circumstances could allow one to construct a story about how it is plausible for a given individual to run up medical bills that would exceed his or her ability to pay. Such a story would give credence to the government’s argument that mandatory insurance is a reasonable means of preventing or combatting the cost shifting that takes place when unpaid medical care is delivered.
By reflecting on this litigation strategy of minimizing the individual circumstances of particular people and highlighting the deprivation of liberty at a very abstract level, one can begin to see the wisdom of the approach to adjudication adopted by Judge Sutton in the Sixth Circuit. Judge Sutton argued that the appropriate way to analyze the constitutionality of the requirement to obtain and maintain a particular level of insurance coverage would be to look at the application of that requirement to particular people, rather than to assess it in the abstract, or as a “facial” matter. Judge Sutton further argued that it would be inappropriate to invalidate the mandate across the board, especially in a pre-enforcement setting, when its application to various classes of people would undoubtedly fall within Congress’s powers as construed by the Supreme Court.