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The ObamaCare Arguments – The Second Day

Based on the questions posed by the justices today, the possibility that the mandate may be struck down went up sharply.

by
Hans A. von Spakovsky

Bio

March 27, 2012 - 3:10 pm

It was a packed house at the Supreme Court today as lawyers Paul Clement and Michael Carvin tried to persuade the justices that the individual mandate — the centerpiece of ObamaCare — is unconstitutional.  Outside, the loud protests — from both sides of the question — continued.  But inside the court was where you’d find a much higher percentage of political movers and shakers.  Among them:  Senate Majority Leader Mitch McConnell (R-Ky.), Sen. John Cornyn (R-Texas), U.S. Attorney General Eric Holder, and many of the state attorney generals, such as Ken Cuccinelli of Virginia and Greg Abbott of Texas, who have filed suits challenging the law.

As the arguments got underway, the court’s doctrinaire liberals — Steven Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan — made it very clear that they see no problem in Solicitor General Donald Verrelli’s claim that requiring individuals to buy health insurance is within the Commerce Power of Congress.  But while Verrelli seemed to have the four liberal justices on his side, he did not have a good day.  Most of the onlookers and court watchers I talked to thought the government came out the loser today.

Verrelli was clearly nervous as he started off his one hour of argument, stumbling repeatedly in his opening statement. His arguments were, at times, confusing and sometimes contradictory, emphasizing the weakness of the government’s position.  Every now and then, Ginsburg and Breyer would step in to try to help him when he was having trouble answering difficult questions from Justices Scalia, Alito, Roberts, and Kennedy.

Kennedy challenged Verrelli almost immediately, asking him whether Congress can “create commerce in order to regulate it.”  Verrelli’s claim that Congress can regulate because the health care market is unique since everyone will have to participate in it at some point started to fall apart when justices such as Alito began asking him about other markets.  For example, Alito pointed out that everyone dies and therefore will participate in the burial expense market.  Under the government’s rationale, Congress could compel all Americans to buy burial insurance so that such costs are not passed on to family or the government.  Justice Kennedy snidely remarked that the government was saying the insurance market was unique “[a]nd in the next case, it’ll say the next market is unique.”

Justice Kennedy made it clear more than once that the government has a “heavy burden” to show that what it is doing is constitutional since it is compelling people to enter into commerce. Kennedy also stated that the government’s theory would “fundamentally change the relationship between the individual and the state.”  This is a key point because in past cases where he has sometimes upset conservatives (such as Lawrence v. Texas, which struck down a state sodomy law), Kennedy has sided with protecting the individual against the power of the state.  This case falls squarely into that category.

Justice Scalia voiced his concern that while the government was arguing that its regulation was necessary, it was not addressing the question of whether it was “proper.”  The government’s claim violated “an equally evident principle in the Constitution,” Scalia said, “which is that the federal government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers.”

Both before and after the arguments, I had revealing conversations with a liberal professor in the courtroom.  He agreed that the government’s chief problem is that it had not provided a limiting factor or boundary line in any of its previous arguments.  Thus, if the Supreme Court agrees that Congress has the power to compel the purchase of an insurance policy from a private company, it could compel the purchase of virtually anything considered good or prudent.  After the arguments ended, the professor agreed that Verrelli had been unable to come up with a concise and reasonable answer to that question, which was asked of him multiple times by different justices.

Liberal commentators and media analysts have claimed for some time now that this is an easy case for the government and that there was no chance the Court would strike down the individual mandate.  After today’s arguments, they must be in shock.  The conservative justices were clearly skeptical that the Commerce Clause grants the federal government this authority.  Furthermore, Justice Kennedy, who replaced Sandra Day O’Connor as the swing vote on the court, was obviously having trouble with Solicitor General Verrelli’s claims.

Based on the questions posed by the justices today, the possibility that the mandate may be struck down went up sharply.

Tomorrow: final day of arguments.  Severability in the morning and the Medicaid expansion of ObamaCare in the afternoon.

 

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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