Did Health Reform Opponents Admit to the Constitutionality of the Mandate?

Yesterday, the Supreme Court heard arguments on two things: whether, if the individual mandate was struck down as unconstitutional (I discussed why I don't think that is going to happen), any part of the rest of the law could stand. In arguing that it couldn't, the opponents conceded that the mandate was in fact Constitutional, right out of the gate and in almost so many words. Paul Clement, arguing for Florida on the side of the challengers, opened with the following:
If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation. And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress's basic goal of providing patient protection but also affordable care.
I also discussed yesterday that a large part of how the court will decide the case will depend on whether or not they defer to Congress' finding that the individual responsibility provision was 'necessary and proper' in order to effectuate the insurance regulations that is opponents agree are within the authority of Congress - namely the provisions that guarantee acceptance (guaranteed issue) and prohibit health status based discrimination (community rating). The Constitution allows Congress to do what is necessary and proper in order to institute a legitimate exercise of its powers. And I think that the opponents, in that opening statement, just spilled the beans that it is indeed necessary and proper.

"Congress found that the individual mandate was essential to their [community rating and guaranteed issue regulations'] operation." Sounds an awful lot like they agree with Congress' finding that the individual mandate is necessary. That is followed up by how those two provisions without the mandate would run counter to Congress' goal in this law. If that is so, then one must ask: if taking out the enforcement mechanism makes the regulations run counter to Congress' intent - and neither the intent nor the specific regulations are unconstitutional (a point the opponents concede) - then how can the effectuating rule not be proper?

This is where I had a hunch that the opponents would undercut their own case against the individual responsibility provision by going after the whole law rather than just the mandate. They are asking the Court to make a radical ruling that not only invalidates Congress' means of exercising market regulation, but Congress' express authority to regulate the market at all. If you do not challenge Congress' authority to legislate insurance regulations but challenge the manner in which it is instituting that authority and then turn around and say that such challenge should also invalidate the regulatory authority that you did not challenge, there's a disconnect.

I'm sure that Paul Clement and Antonin Scalia don't see it this way. Basically, what the challengers are arguing is that the individual mandate is not a proper exercise of Congressional authority, even as a means to enforce its clear regulatory powers. But they have left the Court very few avenues to go to. Their argument is so convoluted that it forces the Court to not only decide what is proper but to wrestle with the intent and expression of Congress about what is proper, with the Constitution clearly weighing towards a wide deference to Congress. In short, the Court cannot decide this case against the government without fundamentally altering the separation of power dynamics between Congress and itself. And of course, without being blatantly political.

Like what you read? Chip in, keep us going.

Desperate for a Whiter America: GOP Faces Disaster Among Minorities and Women

A Reality Check on the Individual Mandate's Day in the Supreme Court