As three historic days of oral argument at the Supreme Court came to a close Wednesday, the fate of the landmark Affordable Care Act seemed as uncertain as ever — if not more so — amid sharp divisions among the justices.
The justices heard arguments over the third and fourth issues they agreed to hear stemming from numerous challenges to the health care law. In hearings Monday and Tuesday, the justices discussed whether they even have jurisdiction to rule, and then whether the so-called “individual mandate” requiring individuals to buy a minimum level of health coverage oversteps the power of Congress to regulate interstate commerce.
The question of severability — what happens to the rest of the law if the mandate struck down — appeared to divide the justices along ideological lines just as the question of the constitutionality of the minimum coverage requirement did on Tuesday.
Paul Clement of Bancroft, representing 26 state attorneys general and the National Federation of Independent Business, argued that if the mandate were unconstitutional, “then the rest of the Act cannot stand.”
Without the mandate, he said, two key provisions — guaranteed issue and community ratings — could not operate in the manner intended by Congress. And if those two provisions could not operate as Congress intended, he added, that would “actually counteract Congress’ basic goal of providing patient protection but also affordable care.”
When those three provisions — the heart of the act — are gone, all that is left is a shell, he said.
But Justice Sonia Sotomayor voiced a view that also seemed to be shared by her colleagues, justices Stephen Breyer and Ruth Bader Ginsburg. States that have experimented with similar healthcare plans, she said, have adjusted those plans as problems occurred.
“Why shouldn’t we let Congress do that?” she asked. “What’s wrong with leaving it in the hands of the people who should be fixing this, not us?”
Ginsburg later noted that the law contains many provisions that have nothing to do with the individual mandate. “So why should we say, it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job?” she told Clement. “And the more conservative approach would be salvage rather than throwing out everything.”
However, Justice Antonin Scalia was skeptical of the “salvage” approach in questions to Deputy Solicitor General Edwin Kneedler, who argued that only the mandate and the guaranteed issue and community ratings provisions should be severed if the mandate is unconstitutional.
“Whether we strike it all down or leave some of it in place, the congressional process will never be the same,” said Scalia. “One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider it — what should I say — in toto?”
Kneedler said judicial restraint and limits on equitable remedial power limit the Court to addressing only the provision challenged as unconstitutional.
But Justice Anthony Kennedy interjected, “We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. 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 striking the whole.”
The court was offered a third option by H. Bartow Farr III of Farr & Taranto, who was appointed by the justices to argue that only the mandate should be severed if found unconstitutional. Farr said the guaranteed issue and community rating provisions were considered the “crown jewels” by Congress in its goal to provide nearly universal and affordable health insurance. The act, he said, contains many tools besides the mandate to achieve Congress’ goal.
Under the government’s proposal, Farr argued, the “crown jewels” would disappear. “We would go back to the old system,” he explained. And under what I think is the proper severability analysis, the real question the Court is asking, should be asking, is, would Congress rather go back to the old system than to take perhaps the risk” that Justice Kennedy suggested would exist if the act were not struck in its entirety.
The afternoon arguments focused on the Medicaid provisions of the health law, which offer states almost a complete subsidy for their costs of expanding coverage to 16 million people are not disabled and whose income is above the poverty line. As with some past Medicaid changes, the law gives the federal government the option to withdraw all Medicaid funding to states that refuse to participate.
Clement, arguing for the 26 states challenging the law, began to make his point that the subsidy and the threat contained in the law unconstitutionally coerces states. But almost immediately, Justice Elena Kagan began a sustained barrage of questions that was picked up by other liberal justices including Sotomayor, Stephen Breyer and Ginsburg. For 25 minutes, no other justices addressed Clement except for Antonin Scalia, who intervened several times to throw his former law clerk a lifeline in the form of a friendly question or helpful comment.
Kagan asked Clement “why is a big gift from the federal government a matter of coercion?” She presented him with a hypothetical of an employer who offers a prospective employee $10 million to work for him. “Now we would both be agreed that’s not coercive, right?” When Clement demurred, Kagan said, “Wow, wow. I’m offering you $10 million a year … and you are saying this is anything but a great choice?” Clement said it might be unduly coercive, if the $10 million was coming from “my own back account.”
It went on from there, with the other liberal justices giving Clement the intense grilling that he has escaped so far during the oral arguments this week. It almost seemed that the justices who are most likely to support the health care law finally realized it might be on the ropes and needed resuscitation during oral argument. With an unusually sharp tone, Breyer tried to knock down Clement’s argument that the withdrawal of Medicaid funding to holdout states was a real threat.
As usual, Clement parried most of their jabs with answers that helped build his case that the Medicaid provisions, like the rest of the law, are unconstitutional. The Medicaid program is “decidedly non-voluntary,” he insisted.
Clement’s half hour of argument time was nearing its end, and Roberts made a surprise statement. “I’m not sure my colleagues have exhausted their questions,” he said, and let Clement continue. Before Clement could say anything, Sotomayor launched into a lengthy line of inquiry.
Solicitor General Donald Verrilli Jr. defended the Medicaid expansion as “an exercise of the spending clause that complies with all the limits” set forth in Court precedents. Verrilli’s delivery was more forceful than earlier in the week when his delivery drew criticism from several commentators. But he sidestepped questions from conservative justices who wanted him to say whether the government would ever shut off Medicaid funds to any states. “These situations are usually worked out between the state and the federal government,” he said.
Verrilli used the final minutes of his time to sum up his position on the importance and validity of the Affordable Care Act. By increasing public access to affordable health care, Verrilli said, millions of Americans will be “unshackled from the disabilities that … diseases put on them and have the opportunity to enjoy the blessings of liberty.” For decades, he said, Congress has struggled to come up with a way of reforming health care. “Maybe they were right, maybe they were wrong,” Verrilli said, but the law is within the bounds of the Constitution’s enumeration of congressional power, and should not be second-guessed by the Court.
Clement had the last word, however, stating that “I certainly appreciate” Verrilli’s sentiments. But he said “it’s a very funny conception of liberty,” when the law requires individuals to purchase health insurance “whether they want it or not.”
Tony Mauro can be contacted at firstname.lastname@example.org. Marcia Coyle can be contacted at email@example.com.