Despite thrust and parry, law not dead yet
Health care issue far from settled after three days
WASHINGTON — Two years and six days after President Obama signed the most sweeping overhaul of the nation’s health care system since the creation of Medicare and Medicaid, the law itself is on life support.
A boisterous octet of Supreme Court justices, plus one silent partner, saw to that during a three-day, 6½-hour debate with lawyers defending and attacking what once was seen as Obama’s proudest legacy.
By the time it was over Wednesday afternoon, virtually everyone following the threeyear battle within the three branches of the federal government had a strong opinion on the Patient Protection and Affordable Care Act. Everyone, that is, except for a few justices who hold its fate in their hands.
Those justices — particularly, it seems, Chief Justice John Roberts and Associate Justice Anthony Kennedy — know their decision in June will reverberate through the halls of Congress, the Oval Office in the White House, the examining rooms of doctors’ offices and the classrooms of ivy-covered law schools for decades to come.
Apart from their decision’s effect on the health care law, the justices could be writing new chapters in the case law books on the concept of federalism, the economic powers of Congress and the government’s relationship with its citizens.
“What’s at stake here is the basic nature of our government,” said Paul Clement, former solicitor general under President George W. Bush, who jousted with the justices while arguing against the law all Tuesday and Wednesday.
To be sure, three days of feisty court debate didn’t doom the health care law. Three justices, including the ever-silent Justice Clarence Thomas, appear likely to oppose the law. But with Kennedy and, to a lesser extent, Roberts straddling the middle ground in their questioning of lawyers for the government, 26 states and a consortium of small businesses, it remains possible the entire statute will be upheld — but it sure didn’t sound that way beneath the mahogany courtroom’s 44-foot ceiling.
On Monday, the justices eagerly elbowed aside an argument that they should delay the case until 2015 because of a tax law enacted in 1867. “Ousters of jurisdiction are narrowly construed,” Justice Antonin Scalia said. “Unless it’s clear, courts are not deprived of jurisdiction.”
On Tuesday, the conservative justices pounced on U.S. Solicitor General Donald Verrilli’s initially halting defense of the law’s heart — its mandate that most Americans buy insurance or pay a penalty that might or might not be a tax, depending on the day of the week.
Seeking to punch a hole in the government’s theory that the health care market is unique because everyone will need it, but not everyone has insurance to pay for it, Justice Samuel Alito compared it to the market for “burial services.” For the man- date, it may have been a prophetic analogy. “Most people are going to need health care, almost everybody,” Alito said, buying half the government’s argument. “Everybody is going to be buried or cremated at some point.”
On Wednesday morning, the court wrestled with the prospect of killing the mandate and having to pick and choose which of the law’s hundreds of sep- arate provisions could live on, ranging from biosimilarity and breast feeding to what Justice Stephen Breyer called “the Indian thing.” It became such a distasteful exercise that dooming the entire law began to seem like a cleaner approach.
“It’s a choice between a wrecking operation . . . or a salvage job,” groused liberal Justice Ruth Bader Ginsburg. “And the more conservative approach would be salvage rather than throwing out everything.”
“Sometimes, half a loaf worse,” Clement warned.
By the time they got to Wednesday afternoon’s session, wiping out the expansion of Medicaid to cover 16 million uninsured people wasn’t too serious a topic for a little frivolity.
“Is there any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors? Is that possible?” Scalia asked.
“There’s a correlation, Justice Scalia,” Clement said. The usually silent courtroom chuckled.
Speaking of politics, if the court invalidates even part of the law, it will toss the health care debate back to Congress. In that case, lawmakers will have to make sense of what the jurists did — except that, as Scalia mused Wednesday, “There’s such a thing as legislative inertia, isn’t there?”
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