Tuesday, March 27, 2012 – the second day of arguments before the Supreme Court, on the question of whether the Affordable Care Act, Obamacare as it is now called, in unconstitutional. Did congress pass, and Obama sign into law, something they had no right to even contemplate? Maybe so, and the second day didn’t go well for the defenders of the law:
With the fate of President Obama’s health care law hanging in the balance, a lawyer for the administration faced a barrage of skeptical questions on Tuesday from four of the Supreme Court’s more conservative justices, suggesting that a 5-to-4 decision to strike down the law was a live possibility.
Predicting the result in any Supreme Court case, much less one that will define the legacies of a president and a chief justice, is nothing like a science, and the case could still turn in various directions. But the available evidence indicated that the heart of the Affordable Care Act is in peril.
The court’s decision is expected by June, and much may change as the justices deliberate and exchange draft opinions in the coming months.
If the indications from Tuesday’s arguments are correct, though, the ruling may undo parts or all of the overhaul of the health insurance system, deal Mr. Obama a political blow in the midst of the presidential election season, and revise the constitutional relationship between the federal government and the states.
The tone on Tuesday made a question to be addressed in the third and final day of arguments on Wednesday all the more important: If the individual mandate requiring most Americans to obtain health insurance or pay a penalty fell, what other parts of the law would fall along with it?
That’s how Adam Liptak opens his New York Times story, and a great deal of detail follows, but Adam Serwer offers a more dynamic narrative:
Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.
Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s – and one that may well have doubled as its eulogy.
“What is left?” Justice Antonin Scalia demanded of Verrilli, “If the government can do this, what can it not do?” Verrilli’s response to this basic and most predictable of questions was to rattle off a few legal precedents.
Justice Samuel Alito asked the same question later. “Could you just – before you move on, could you express your limiting principle as succinctly as you possibly can?”
The months leading up to the arguments made it clear that the government would face this obvious question. The law’s defenders knew that they had to find a simple way of answering it so that its argument didn’t leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything – (say, broccoli or health club memberships, both of which Scalia mentioned). Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him life lines, all of which a flailing Verrilli failed to grasp.
“I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later,” said Justice Ruth Bader Ginsburg. Verrilli responded gratefully: “That is – and that is definitely a difference that distinguishes this market and justifies this as a regulation.”
And Kevin Drum comments:
This is just bizarre. Verrilli is an experienced guy. He’s been involved in loads of Supreme Court cases and has personally argued more than a dozen. So what on earth happened? So far I haven’t seen anyone even take a stab at trying to figure it out. How could Verrilli possibly be unprepared for the questions he got, given that the conservative arguments against Obamacare have been extremely public and obvious for well over a year? Everyone in the world knew what to expect. Everyone except Verrilli, apparently…
This is just mind boggling.
Well, maybe Verrilli is the courtroom equivalent of Shoeless Joe Jackson and this is just like the 1919 Black Sox Scandal – maybe someone paid him to throw the game and lose the World Series. But no, we already have far too many conspiracy theories about everything. But it is puzzling. And there was this:
CNN’s legal correspondent Jeffrey Toobin reports that the court’s conservative wing appeared skeptical of the Obama administration’s arguments in favor of the individual mandate provision of the Affordable Care Act.
“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down,” Toobin said on CNN. “All of the predictions including mine that the justices would not have a problem with this law were wrong.”
“The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides, all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were – they did not meet with their success with their colleagues,” Toobin said.
Verrilli wasn’t prepared. The conservative justices ate him alive. Hey kids, do your homework! Ask Andrew Koppelman, the John Paul Stevens Professor of Law and Professor of Political Science at Northwestern, who offers these comments:
The No Limits argument was succinctly stated by Justice Kennedy: ”Can you create commerce in order to regulate it?” He worried that “this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.” Roberts worried that government could force you to buy a cellphone; Alito, burial services; Scalia, broccoli.
But there already is a pretty big limit on the commerce power: United States v. Lopez, a well-known 1995 decision that invalidated a federal ban on handgun possession near schools. Justice Breyer nicely summarized its holding: “Congress cannot get into local affairs, particularly where they are noncommercial.” With that decision on the books, the No Limits argument is like saying that unless you buy my rickshaw, you will have no way to move from place to place. You have legs. Everyone can see them. Lopez placed limits on federal power. Everyone can see them. The claim that there will now be no limits is weird. It denies the existence of what is there in plain sight.
And there’s this:
When Breyer raised this obvious objection, attorney Paul Clement responded: “Lopez is a limit on the affirmative exercise of people who are already in commerce. The question is, is there any other limit to people who aren’t in commerce?” This is like saying, “Yes, I know you have legs, but you still won’t be able to move from place to place unless you buy the rickshaw!” Clement admitted that Lopez is already a limit on federal power. He’d just like the Court to create another one. And the new limit would really be much less important than the old one. He told Breyer, a few moments earlier, that the framers weren’t apprehensive about the breadth of the commerce power “because it’s a power that only operated once people were already in commerce.” But most of what we do is in commerce. We can’t realistically avoid having jobs and buying things. If the only way for me to avoid federal power is to live in the woods and eat berries, then that’s not much of a limit.
You get the idea. A lot of this was nonsense. But it worked:
Alito thought it somehow unjust to regulate “somebody who is doing absolutely nothing about health care” by “requiring them to subsidize services that will be received by somebody else.” Justice Ginsburg responded: “If you’re going to have insurance, that’s how insurance works.” More important, that’s how any economy that is not pure, brutal laissez-faire works. If pre-tax income is deemed somehow sacrosanct, and no redistribution of it is legitimate, then it is even illegitimate for the government to act to prevent outright starvation, because the people paying for the food are not the ones eating it.
No one was talking about basics:
What Solicitor General Donald Verrilli evidently could not bring himself to say – and this may be why his answers to No Limits were so tangled and hard to follow – is that there is no such safe harbor. Government already forces you to buy insurance you may not want, and thereby to subsidize others, via Social Security and Medicare. The check on the abuse of this power is a familiar one: the ballot box. George W. Bush’s failed Social Security privatization scheme tried to greatly reduce this cross-subsidization. Had he succeeded, the poorest old people, who have only Social Security to support them, would have gone from watch-your-pennies poverty to grinding, desperate poverty, just above the level of homelessness and starvation. Evidently the electorate didn’t regard it as a cruel injustice for the strong and rich to help support the weak and poor. …
A bit later, Scalia suggested that under the Constitution, “the people were left to decide whether they want to buy insurance or not.” He later suggested again that the problem could be solved by not requiring insurance companies to sell affordable insurance to people with preexisting conditions. Here the purported champion of judicial restraint proposes reading brutal, unregulated capitalism into the Constitution. Fundamental rights are violated if government acts to keep sick people alive? The other objections to the law are merely confused. This one is evil.
And Andrew Sullivan adds this:
I have no expertise in constitutional law so cannot say either way on the ACA’s constitutionality. But as a principle, having the federal government forcing me to buy something I might not want does rub me the wrong way. But since there are clear collective consequences of my refusal to buy insurance and yet expect adequate treatment if I were to get squished on my bike by a truck, I can see the need for mandatory insurance, as with cars. This is about ending free-riders and ensuring personal responsibility – which is why the individual mandate was once regarded as a clearly conservative proposal.
But my main reason for supporting the ACA is pretty simple. The private sector has been given a chance to show it can deliver healthcare efficiently – and it has failed to such a spectacular extent that government has little choice but to try and prevent this sector bleeding the rest of the economy dry. Compared with more collective, socialized systems, the cost of the US system to achieve the same results is gob-smacking – hence the cost-control reforms. The private sector, moreover, simply won’t work for someone like me with a chronic condition, who couldn’t get a personal private insurance policy if I tried.
Yes, Sullivan HIV-Positive, like Magic Johnson. But that is not his main point:
In what other business is the private sector so vastly less efficient than the public sector? I suspect those businesses where consumers are vulnerable – because they know nothing compared to the seller, or because they desperately need help. Both apply in spades to healthcare.
And there’s Joan Walsh:
Nobody knows what the Supreme Court is going to decide about the Affordable Care Act. Reporters on the left and right have analyzed every justice’s every word and every sigh. Some ACA partisans are panicking; some aren’t. We’ll know what they decide when they announce it, and not a moment earlier.
Is there anything to say before that? I was going to hold my tongue, until I heard Michele Bachmann compare the individual mandate to the government requiring you to buy broccoli or join a gym – and then heard some of the conservative justices echo the same lame talking points. The kind interpretation is that the justices don’t know how the health care market works any better than most reporters do, so they’re grasping for ways to understand it. The unkind interpretation is that the conservative intellectual machine that helped to produce Antonin Scalia (a Federalist Society alum) churns out talking points that are now parroted not just by unblinking zealots like Bachmann, but at the highest level of government.
But she’s not entirely panicked:
The individual mandate may survive anyway. In later questioning Justice Anthony Kennedy noted that the law doesn’t actually force anyone into the health care market; because laws require hospitals to provide care regardless of ability to pay, the uninsured are “in the market” already and “creating a risk.” No one can reliably predict how the court will come down on this question. What we do know is that a single payer system would stand up to constitutional scrutiny – the anti-ACA plaintiffs admitted as much – and save a lot of money. Progressives should use the fact that even conservatives don’t want citizens forced into the rapacious insurance market to make the case that letting them buy into Medicare is more efficient and humane, as well as constitutional. And certainly if the individual mandate is declared unconstitutional, that has to be the new demand.
And Robert Reich argues just that:
The dilemma at the heart of the new law is that it continues to depend on private health insurers, who have to make a profit or at least pay all their costs including marketing and advertising.
Yet the only way private insurers can afford to cover everyone with pre-existing health problems, as the new law requires, is to have every American buy health insurance – including young and healthier people who are unlikely to rack up large healthcare costs.
This dilemma is the product of political compromise. You’ll remember the administration couldn’t get the votes for a single-payer system such as Medicare for all. It hardly tried. Not a single Republican would even agree to a bill giving Americans the option of buying into it.
But a Supreme Court ruling against Obamacare could change things:
The president and the Democrats could have avoided this dilemma in the first place if they’d insisted on Medicare for all, or at least a public option. After all, Social Security and Medicare require every working American to “buy” them. The purchase happens automatically in the form of a deduction from everyone’s paychecks. But because Social Security and Medicare are government programs financed by payroll taxes they don’t feel like mandatory purchases.
Americans don’t mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout “don’t take away my Medicare!” at rallies opposed to the new health care law.
There’s no question payroll taxes are constitutional, because there’s no doubt that the federal government can tax people in order to finance particular public benefits.
We could do Medicare for all and there would be no legal defense against it, or at least none of the current objections would apply at all:
Republicans have mastered the art of political jujitsu. Their strategy has been to demonize government and privatize everything that might otherwise be a public program financed by tax dollars (see Paul Ryan’s plan for turning Medicare into vouchers). Then they go to court and argue that any mandatory purchase is unconstitutional because it exceeds the government’s authority.
Obama and the Democrats should do the reverse. If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.
When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.
If they did this the public will be behind them – as will the Supreme Court.
But that’s down the road, and Steve Kornacki argues here that Verrilli’s absurdly and inexplicably incompetent performance might not matter:
Keep in mind that it’s also possible that all of the justices made up their minds long before today’s arguments, meaning that Verrilli – if he really performed as terribly as firsthand observers are saying – might not have actually blown the case, no matter how badly he did.
And Jonathan Cohn agrees:
Reaction in the press room, although mixed, seemed more negative than reaction elsewhere. My canvassing of legal experts found pretty mixed opinions on how the case will turn out. (Walter Dellinger, the Duke Law professor who supports the law, pointed out that the plaintiffs effectively made it clear that the only way to create national health insurance would be through a single-payer system, an idea most conservatives detest.) Truth is, it’s impossible to know what the justices are really thinking - and to what extent the justices are asking questions to satisfy their own doubts before going in the other direction.
And Jonathan Chait has had it with all the talk about broccoli:
Obamacare opponents have managed to whip themselves into a frenzy by painting fantastical, concocted stories about the government forcing people to eat broccoli – as if they truly cannot imagine a legal or philosophical principle that would allow the government to enforce a health care mandate (that conservatives invented!) and not allow the government to force-feed broccoli to its population.
But Paul Waldman points out something far more absurd, that Americans want something for nothing:
Eighty-five percent of the public – in other words, basically everyone – thinks we all ought to get coverage no matter our pre-existing conditions. Even Republicans think that. But over half of the public doesn’t think we ought to be required to get insurance, despite the fact that universal participation in the insurance pool is precisely the thing – and the only thing – that makes it possible to do away with exclusions for pre-existing conditions and get closer to a system that operates the way it should, i.e. that you have insurance, and that insurance pays for whatever medical needs you have, full stop.
Conor Friedersdorf makes the same point:
Put simply, Americans want all the freedom of a market-based health insurance system, all the security of a system heavily regulated by government, and the option to put off purchasing this guaranteed insurance until it’s needed. And all for no more than they’re paying now. It seems whoever is in power will be doomed to disappoint.
But Yuval Levin argues the other way:
Acknowledging that the system you have designed can’t function economically unless everyone is compelled to participate in it should make you wonder about the wisdom of that system, rather than making you defend the proposition that Congress has the authority to compel everyone to buy what you want them to buy.
In short, maybe there shouldn’t be universal health insurance at all, even if it is good for the country and congress did pass a form of it, as to make that work everyone has to chip in – and forcing anyone to chip in, even for the public good, takes away their freedom, and everyone’s freedom really, which is unacceptable – or something like that.
And Ed Kilgore simply gives up:
Perhaps tomorrow’s hearing, on the “severability” of the mandate from the rest of the ACA, and on the constitutionality of its Medicaid provisions, will generate some new hints, but probably not. We’re in for a long wait – probably until June or July – with a truly momentous decision in very serious doubt, and the ever-erratic Kennedy in charge. That’s just great.
No it isn’t.