March 28, 2012 Leave a comment
5 takeaways on health law arguments
By: Jennifer Haberkorn and Josh Gerstein
March 27, 2012 08:30 PM EDT
This much is clear after Tuesday’s Supreme Court arguments: The centerpiece of President Barack Obama’s signature health care law stands in real danger of being struck down.
It’s not a sure thing by any means — but all of the other lessons of Tuesday’s arguments are shaped by the prospect that the law is in more trouble than many expected.
The court’s conservative justices defied expectations by delivering an unexpected battering to the individual mandate — and administration lawyer Solicitor General Donald Verrilli Jr. — during two hours of oral arguments. Assuming the liberals side with Obama, at least one of the court’s Republican appointees would have to approve the law’s constitutionality for the law to be upheld.
“The government had in my view as bad a day as it reasonably could have,” said Tom Goldstein, founder of SCOTUSblog and a regular litigator at the high court. “It won’t cause the government to have a complete cardiac arrest — they’ll just be nauseous for months. … The only people coming out of that building optimistic today were the plaintiffs.”
Everyone will be studying the justices’ questions closely to figure out what’s next. Here are five takeaways from Tuesday’s unexpectedly rough ride for the government:
It’s Roberts or Kennedy
The future of Obama’s health law rests in the hands of Chief Justice John Roberts or Justice Anthony Kennedy.
Based on their questions Tuesday, it’s going to be a long shot for Obama to get either one. But it’s the only shot Obama has — he needs at least one of them.
The court’s three most conservative justices — Justices Antonin Scalia, Samuel Alito and Clarence Thomas — did not give any signs that they’re open to the government’s case. While some backers of the law held out hopes of picking up support from Scalia and Alito, those two justices quickly piled on against the law, suggesting that the mandate would lead to other requirements from Congress. Thomas, as per usual, did not ask questions during the argument.
Both Kennedy and Roberts asked sharply critical questions of the Obama administration during oral arguments on Tuesday, and they seemed to have only passing reservations about striking the law’s mandate.
Roberts appeared to be worried that if the court upholds the health law, the ruling could lead to a parade of other mandates from Congress.
“Once we say that there is a market and Congress can require people to participate in it … it seems to me that we can’t say there are limitations on what Congress can do under its commerce power, just like in any other area,” Roberts said. “All bets are off.”
Kennedy had similar concerns. “Here, the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases,” he said. That “changes the relationship of the federal government to the individual in the very fundamental way.”
But the law’s supporters shouldn’t write off Roberts and Kennedy just yet. Both of them at least acknowledged the government’s argument that everyone needs health care at some point in his or her life — it’s key to the government’s position that health care is a unique area that warrants exemptions.
“The young person who is uninsured is uniquely, proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries,” Kennedy said. “That’s my concern in the case.”
Late in the arguments, Roberts made a couple of similar points. But unlike Kennedy, his statements had a perfunctory quality to them, since he made it clear he was recycling arguments from the government.
It’s all about the broccoli
The biggest obstacle for Roberts and Kennedy appears to be whether allowing the health law to proceed opens the door to Congress mandating that Americans buy other products, such as broccoli.
The best hope for the administration is if the liberal justices — or Roberts or Kennedy — can identify a way to write the ruling that would prevent the “parade of horribles” that Justice Sonia Sotomayor talked about: mandates to buy leafy greens, gym memberships, General Motors cars or the latest entry in that series — cellphones.
“I thought that was an important part of your argument,” Roberts told Verrilli. “That when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it — get it.”
But Roberts asked whether the same assurance that the government will provide emergency services could lead to a requirement that everyone buy a cellphone to help facilitate communication in an emergency.
If Roberts can find a way to ensure that the “cellphone” mandate can’t happen, it’s the best shot that he’ll be OK with upholding the insurance mandate.
Did the government’s lawyer blow it?
The court session had barely ended Tuesday when court watchers began panning Verrilli’s performance in front of the justices.
“They [other side] did a heck of a better job than Donald. … He was passive. He was stumbling,” CNN legal commentator Jeffrey Toobin told POLITICO. “I was just shocked.”
Washington Post columnist and policy blogger Ezra Klein wrote on Twitter that “reading the transcript, Verrilli is weak,” adding, “but more so [because] the justices were hostile to his argument.”
However, other analysts said the negative reviews of Verrilli’s performance were wildly exaggerated. Reporters and other observers who spent almost an hour waiting for the arguments to begin gave too much weight to a minor stumble at the outset of Verrilli’s presentation.
“Something weird happened. He kind of stopped and restarted and that kind of got in people’s heads,” said Goldstein, who regularly appears before the justices.
Goldstein said Verrilli did a “fine job” and had the tougher task of the two sides this morning — even before he opened his mouth. He said Verrilli also suffered in comparison with former Solicitor General Paul Clement — the attorney representing the states opposing the law — who gave “the argument of his life.”
Still, it seemed at times that even the court’s liberal wing didn’t think Verrilli was making the best arguments for the law. “I thought your main point is …” Justice Ruth Bader Ginsburg said as she interrupted Verrilli’s answer to one of Scalia’s questions.
The court’s liberal wing looks solid
There was never much doubt that the court’s four liberal justices would vote to uphold the health care law, but there was even less after Tuesday’s arguments.
Justices Ginsburg and Stephen Breyer proved to be the most ardent proponents for the law, frequently making arguments to try to win over their colleagues.
Breyer seemed most taken by the argument that the mandate is needed to help regulate the health market and get insurance coverage to the millions of uninsured Americans.
And Ginsburg tried to help Verrilli make the case that despite the best plans, no one can be sure they will be able to pay for their health care if disaster strikes.
“Unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money,” she said.
The pundits take it on the chin … or need ketchup with that hat, sir?
In the orgy of panel discussions, interviews and feature articles previewing this week’s arguments, law professors, Supreme Court litigators and journalists confidently predicted that the justices would uphold the individual mandate as a logical extension of the federal government’s well-established ability to regulate the health insurance market.
Harvard law professor Charles Fried, a solicitor general himself in the Reagan era, famously promised a couple of years ago to eat his Kangaroo skin hat if the Supreme Court struck down the law.
Within the first few minutes of Tuesday’s arguments, that bravado seemed to go out the window.
“Eventually, the conventional wisdom will catch up with reality,” Goldstein joked. “It’s absolutely true that this argument has gotten the back of the hand from the legal glitterati, including myself.”
The final word won’t come for months, Goldstein said, “but I’ll tell you [the challengers] are doing the high-fives today. … They’re not doing them at the Department of Justice.”
© 2012 POLITICO LLC