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Abigail R. Moncrieff,  When the Tenth Justice Doesn't Bark: The Unspoken Freedom of Health Holding in NFIB v. Sebelius, Boston Univ. School of Law, Law and Economics Research Paper No. 12-44, available at SSRN

Given the intense popular, political, and academic interest in the challenge to the Affordable Care Act, it comes as no surprise that the Supreme Court’s decision in NFIB v. Sebelius would launch a flotilla of articles about that decision, particularly since the outcomes (with respect to both the individual mandate’s constitutionality and the expansion of Medicaid) were not what conventional academic wisdom had predicted.  In the coming months and years, we will undoubtedly spend a good deal of time thinking through and reading about the possible implications of what the Court did, and didn’t do, in that case.

But the most intriguing and enjoyable article that I have read so far about NFIB focuses not on what the Supreme Court did or didn’t do, but on what Solicitor General Donald Verrilli chose not to do in defending the individual mandate against a commerce power challenge before the Court.  In “When the Tenth Justice Doesn’t Bark:  The Unspoken Freedom of Health Holding in NFIB v. Sebelius,” Abigail Moncrieff hypothesizes that the Solicitor General deliberately chose to forgo raising a more persuasive legal argument regarding the individual mandate’s constitutionality and that this politically strategic decision represents a previously unexplored terrain of popular constitutionalism.

According to Moncrieff, the argument that would have had a better shot at persuading a majority of the Justices goes something like this:  By steering consumers’ savings and consumption in the market for health care, health insurance of the sort mandated by the ACA performs an “aggressive regulatory function” in overcoming market failures flowing from optimism bias, hyperbolic discounting, and the credence goods problem.  So understood, the mandate functions to make the enormous, existing market in health care more efficient by eliminating the inefficiencies of self-insurance and shifting individuals into efficiency-enhancing insurance plans.  From there, Moncrieff argues, the forgone argument is straightforward:  “Obamacare wants to prohibit self-insurance because self-insured health care is systematically less efficient than fully-insured health care.  This story is an easy fit for existing commerce clause doctrine.”

Moncrieff is an expert when it comes to this forgone argument, having co-authored an amicus brief presenting it to the Supreme Court.  I can imagine that, if I had presented a novel and at least seemingly compelling argument like this, I might wonder why neither the Solicitor General nor the Court picked it up and ran with it. I might even feel a bit underappreciated by the Justices.  But instead of privately grousing, Moncrieff wrote an article offering a thoughtful explanation that reaffirms the strength of the argument while suggesting an intriguing hypothesis as to why the Solicitor General ignored it.

The core of Moncrieff’s argument is that, by creating incentives and disincentives that steer health care consumers’ choices, the health insurance mandated by the ACA is in effect an instrument of soft rationing, and that a constitutional justification of Obamacare based on this rationing function was politically unacceptable, particularly in an election year.  To Moncrieff, the only plausible explanation for Verrilli’s decision not to play this high card was that it would generate a strongly negative popular response.  She characterizes this populist sentiment objecting to health care rationing as being aligned with a “freedom of health” principle protecting autonomy in medical decision making, a principle that lacks full doctrinal recognition but conforms to a “loose substantive due process norm.”  She goes on to suggest that this popular political constraint effectively “muzzled” the Solicitor General (here acting clearly as an agent of the President rather than the Court) and thus functioned as a form of popular constitutionalism.  As Moncrieff puts it: “The popular constitutional freedom of health is … a populist sentiment that has the fortitude of a constitutional principle, the effects of a substantive constitutional right, and the strength of a constitutional argument that can shape judicial opinions – albeit silently and politically rather than openly and doctrinally.”

Moncrieff is the first to admit that characterizing this hypothetical scenario as an instance of popular constitutionalism in many respects does not fit neatly within established academic conceptions of that phenomenon. But that is part of what I like so much about this article.  Moncrieff’s attempt first to put herself in the position of the Solicitor General to hypothesize why he left a constitutionally powerful argument unmade and then to explore the broader significance of this puzzling decision is a wonderful example of legal scholarship that observes with a realist’s eyes how legal actors behave and seeks to make sense of that behavior against the background of legal rules and institutions.  Her hypothesis as to why Solicitor General Verrilli chose not to present a compelling argument in one of the most important constitutional cases in recent decades is intriguing, and – while the article may not rival Sir Arthur Conan Doyle’s Sherlock Holmes (to which Moncrieff’s title refers) for plot twists and suspense – it has a narrative flow that held my attention to the end.

While I found “The Tenth Justice” a provocative and enlightening read, at the end I found myself wondering about a question that was admittedly beyond its scope.  If Moncrieff’s hypothesis is right, President Obama (acting through the Solicitor General) decided to protect his re-election prospects at the price of forgoing his strongest argument for the constitutionality of the individual mandate – an integral part of his historic legislative accomplishment.  Why?  We know now that the gamble turned out well from the President’s perspective:  The Supreme Court upheld the mandate (though as an exercise of Congress’s taxing power rather than its commerce power) and the President won re-election.  But neither of those outcomes could be foreseen with any certainty when the Solicitor General briefed and argued the case.  Perhaps some good detective work will someday uncover the story behind the President’s decision….

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Cite as: Mary Crossley, Some Things Are Better Left Unsaid: The Argument the Solicitor General Didn’t Make in NFIB v. Sebelius, JOTWELL (April 23, 2013) (reviewing Abigail R. Moncrieff,  When the Tenth Justice Doesn't Bark: The Unspoken Freedom of Health Holding in NFIB v. Sebelius, Boston Univ. School of Law, Law and Economics Research Paper No. 12-44, available at SSRN.  ),