From all appearances, the Supreme Court now is examining whether the new health care act’s minimum coverage provision—often referred to as the "individual mandate"—comports with the grants of power made to Congress by the Commerce Clause and Necessary and Proper Clause. The Court is considering this question against the backdrop of submissions made by the Solicitor General supporting the law and by a group of respondents vigorously attacking the law’s constitutionality. In a separate and more elaborate paper, I suggest that the two sides took dramatically different strategic approaches to the case. The Solicitor General emphasized how the minimum coverage provision was of practical importance to Congress’s comprehensive effort to make health insurance policies broadly affordable on equal terms. Among other things, he argued that the provision guards against the risk that individuals would game the system by strategically waiting until they were ill to buy policies at a favorable, nondiscriminatory price. Although the government relied in part on McCulloch v. Maryland to support the constitutionality of the minimum coverage provision, its argument was overwhelmingly based on modern precedents and pragmatic considerations.
In striking contrast, the respondents rushed to occupy the originalist high ground. Time after time, in both their briefs and oral arguments, they drew attention to The Federalist, the "great Chief Justice," Hamilton, Madison, "the framing generation," "the founding," and "the Framers." Counsel for the respondents took care to direct the Justices’ attention to the "text of the Constitution" and the purportedly "unprecedented" character of the minimum coverage provision. They also sought to draw on the Framers’ original purposes by arguing that invalidation of the minimum coverage provision would vindicate "individual freedom," while ensuring that the federal government would not come to possess "plenary power."
In my earlier work, I argued that these contrasting strategies raised a serious risk for the Solicitor General’s defense of the minimum coverage provision by creating the impression that the respondents held a much stronger hand than the government with regard to originalist lines of reasoning. I also observed that the government in fact had—notwithstanding the picture painted by its non-originalist strategy—a powerful set of originalist arguments it could have made to the Court. In this Essay, I seek to identify the central arguments that the Solicitor General might have offered but did not advance, while also focusing on key questions presented by the Justices at oral argument.