Published March 28, 2012
The Supreme Court on Wednesday wrapped up its exhaustive three-day session which will determine the fate of the federal health care overhaul, ending with what is arguably the most consequential question of the case -- if the individual mandate is struck down, does the law survive?
The nature of questioning over the last few days signaled several judges have serious doubts about the law. But they hardly indicated which way the often-divided court would rule, with a decision expected by summer.
In an election year, the case dealing with the incumbent president's most significant domestic policy achievement is a blockbuster. On the final day of arguments, the gravity of the decision was evident, as justices struggled over what to do with the rest of the Affordable Care Act if they also rule that its central provision is out of bounds.
The question dealt with whether the entire health care law should stay or go or be revised if the so-called individual mandate -- the requirement that everyone buy health insurance -- is struck down. That, and a debate over the law's Medicaid requirements, filled the last day of discussion in the landmark hearings.
On the mandate, the justices broadly examined the other parts of the law which the Obama administration was trying to save while its opponents asked for complete repudiation. The discussion centered on what to do now with this case but also on concerns over the proper role for the courts in interpreting what Congress would want done with a law that's been changed from its original version.
Justice Antonin Scalia raised concerns over the role of the courts in going through this law and others line by line looking for parts to strike down.
"This is really a case of first impression," Scalia said. "I don't know another case where we have been confronted with this decision. Can you take out the heart of the act and leave everything else in place?"
To that end, Scalia made specific mention of a notorious provision of the law, dubbed the "Cornhusker Kickback," which along with other sweeteners were added to gain votes. That sort of legislative wheeling and dealing made it difficult for some justices, especially Scalia, to see how the rest of the ACA could survive without the mandate.
Some justices were open to keeping at least parts of the law, though.
Justice Ruth Bader Ginsburg likened it to a preference for a salvage operation rather than a wrecking operation.
Ginsburg made note of many provisions in the ObamaCare law that have a modest relationship to the controversial individual mandate and could work just fine without the forced conscription of Americans onto health insurance rolls.
"I mean, it's a question of whether we say everything you did is no good, now start from scratch, or to say, you know, there are many things in here that have nothing to do, frankly, with the affordable healthcare, and there are some that we think it's better to let Congress to decide whether it wants them in or out."
Echoing that view was Justice Elena Kagan, regarding the creation of local health care exchanges to pool individuals into collectives that can bargain for better rates.
She said sometimes half-a-loaf is better than no loaf and Congress "seems like they want half a loaf."
Justice Sonia Sotomayor said she agreed with that sentiment, but lawyer Paul Clement, arguing on behalf of the 26 states challenging the law, said that sometimes half a loaf is worse and that the entire law should be set aside.
Clement cited a landmark campaign finance case that he said led to decades of uncertainty and problems in political races. "This court looked at a statute that tried to, in a coherent way, strike down limits on contributions and closely related expenditures," Clement offered about the case Buckley v. Valeo. "This court struck down the ban on expenditures, left the contribution ban in place, and for four decades Congress has tried to fix what's left of the statute, largely unsuccessfully."
The Obama administration's view is that only two parts of the law -- guaranteeing insurance for all people and at a rate affordable for all participants -- should go down if the individual mandate is invalidated.
But Justice Anthony Kennedy expressed concern with that view, saying it might end up worse for insurers who would still need to cover customers added on to their roles.
"We would be exercising the judicial power if one act was stricken and the others remained to impose a risk on insurance companies that Congress had never intended," Kennedy said. "By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike the whole."
In trying to preserve those other parts of the law, Deputy Solicitor General Edwin Kneedler noted portions of the ACA that are already in effect and made mention of the provision allowing some adult children to obtain coverage through their parents.
"It's going to bankrupt the insurance companies," Scalia shot back.
Sotomayor then fired off a line of argument from Tuesday's hearing saying she thought 26-year-olds were healthy. A day earlier, the justices seemingly opposed to the law raised concerns over the costs of the mandate on younger, more healthy people.
Chief Justice John Roberts wondered "where is the sharp line" to draw in determining what to keep and what to exclude.
Kneedler said that line is based on what Congress called essential elements of the law.
The Court appointed lawyer Bartow Farr to defend the 11th Circuit's ruling that the entire ACA should be upheld. He said the rest of the act still "serves the central goals that Congress wanted" of near universal care at an affordable cost.
But Kagan noted that based on the experiences of the states, Congress took the Massachusetts model which tied the individual mandate to the rest of the law.
The afternoon session focused on one specific provision of the law that expands the Medicaid program providing health care to America's poor. The federal-state partnership was created in 1965 and has expanded in the years since. Clement, again arguing on behalf of the 26 states fighting the law, said the expansion under the ACA was coercive, in part, because of the massive costs involved and his contention that the states have no choice but to maintain participation in the program.
Clement had barely finished his first sentence when Kagan immediately asked him why it was coercive for the federal government to give billions of dollars in additional aid to the states. "There are no matching funds requirements, there are no extraneous conditions attached to it, it's just a boatload of federal money for you to take and spend on poor people's healthcare," she declared. "It doesn't sound coercive to me, I have to tell you."
To that, Clement said the government's money was still coercive because it assumed the states would take the money and that Congress was leveraging their prior participation in the program. Kagan pressed further with a hypothetical asking Clement if he'd accept a lucrative job. He said it would depend on where that money came from.
"Wow! Wow!" Kagan exclaimed in wonderment. "I'm offering you $10 million a year to come work for me and you are saying this is anything but a great choice?" Clement sharply replied, "Sure, if I told you, actually it came from my own bank account."
That exchange served as an appetizer for a meal full of questions from the Court's more liberal members peppering Clement. Sotomayor said she had troubles with Clement's arguments on the funding matter: "We're going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can't structure the program the way you want. ... I don't see where to draw that line."
Perhaps the biggest issue of Clement's argument, if not the entire case, is addressing whether the states are forced to accept the Medicaid expansion under the threat of losing all preexisting Medicaid funding. Justice Stephen Breyer was the most vocal against this idea saying it would be "unreasonable" for a government official to actually take all money away from a state for noncompliance with the new mandate.
Roberts didn't seem too keen on that argument, focusing instead on the ability, however unlikely, of the Health and Human Services secretary to withhold money.
"So why shouldn't we be concerned about the extent of authority that the government is exercising, simply because they could do something less?" he asked.
Solicitor General Don Verrilli, who was criticized in some quarters for his performance Tuesday, said there was no significant history to suggest an HHS secretary would withhold funds -- after all it's in everyone's interest to make sure money is available for health services, a point backed by Kagan.
But Roberts likened the threat of possibly withholding funds to Dirty Harry, saying it was unlikely the states would reply to Washington's demands with "make-my-day" bravado.
For Justice Anthony Kennedy, the issue of compulsion raised concerns of whether the central government was getting too involved in people's lives.
The close of the case also brought the curtain down on nearly six-and-a-half hours of arguments over the health care law. Just before they adjourned, the two lawyers offered a final plea to the court. Verrilli spoke first about the problems of people not being able to afford health insurance.
"There is an important connection, a profound connection between that problem and liberty. And I do think it's important that we not lose sight of that," he said.
Clement soon followed to say, "I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not."