Legal arguments often rely on analogies. Indeed, during the first year of law school, students learn to analogize and distinguish cases. “This case is like this one, not that one.” Good lawyers can always conjure up and deploy a good analogy.
So why was it so hard yesterday for some of the most skilled lawyers and judges in the country to identify a good analogy for the individual mandate–the Affordable Care Act’s requirement that almost everyone buy minimum essential health insurance coverage or pay a penalty?
Here’s a brief rundown of the analogies invoked yesterday (by both the justices and the advocates), and then some thoughts on why they fall flat:
1. Is mandating health insurance like mandating that people buy cell phones to call 911? (Chief Justice Roberts).