Supreme Court greets healthcare mandate with skepticism

WASHINGTON — The legal fate of President Obama's embattled healthcare law has always turned on winning over the center of the Supreme Court: JusticeAnthony M. Kennedy.

But as the court considered whether the federal government could require most Americans to get health insurance, Kennedy appeared to deal the president and his allies a heavy blow.

The mandate, he said, "changes the relationship of the federal government to the individual in a very fundamental way." Kennedy called the insurance requirement "concerning" and suggested it might be "unprecedented."

Predicting decisions based on justices' comments during arguments can be risky. And on the second day of oral arguments over the landmark law, Kennedy and Chief JusticeJohn G. Roberts Jr.at times seemed to agree with the government's view that because everyone is likely to need medical care at some time, Congress might have more latitude to require purchase of insurance than of some other product.

But those moments were exceptions. Overall, the clear skepticism about the insurance mandate expressed by Roberts and Kennedy seemed to set the stage for a 5-4 decision, with the court's five Republican appointees pitted against its four Democrats.

Such a ruling would strike out the heart of Obama's healthcare law, his signature domestic achievement, in the middle of the presidential campaign, which could become a significant, and unpredictable, factor in the election. Not since the mid-1930s has the Supreme Court struck down a major regulatory act of Congress.

A ruling against the mandate would not necessarily overturn all of the healthcare law. The question of how much might be left is one the justices will grapple with in Wednesday's arguments, the finale of three days of debate over the law. But on Tuesday, at least, the administration's supporters were dispirited.

"It certainly didn't go as well as I had hoped it would for the government," said Timothy Jost, a law professor at Washington and Lee University and an authority on healthcare law. "It was always fairly certain they had four votes. It's clear now they are going to have a hard time pulling a fifth."

Kennedy and Roberts, along with fellow conservative Justices Antonin Scalia and Samuel A. Alito Jr., repeatedly questioned where the limit on federal power would be if the mandate was upheld. Justice Clarence Thomas was silent, as is his habit, but is expected to vote to strike down the mandate.

"If the government can do this, what else can it … do?" Scalia asked, suggesting Congress might require Americans to buy broccoli or automobiles.

Roberts suggested that the government might require Americans to buy cellphones to be ready for emergencies.

Kennedy, who is often the court's swing vote, seemed to suggest that a mandate directed at individuals could be upheld only if the government offered an extremely powerful justification. And his comments from the bench raised considerable doubt about whether he thought the administration had met that test.

Solicitor Gen. Donald Verrilli Jr., the Obama administration's top lawyer, tried to argue that the insurance mandate would not open the door to other requirements to buy products because healthcare is unique.

"Virtually everybody in society is in this market," said Verrilli, who appeared to struggle to answer conservative justices' probing questions. Justice Ruth Bader Ginsburg and other liberal justices intervened at points to help him along, defending the new law as a reasonable means to cope with the uninsured.

From the start, the mandate to buy insurance has been seen as the central and most controversial provision in the Patient Protection and Affordable Care Act. It is by far the one most Americans say they oppose, according to polls.

Under the law, many of the nearly 20% of individuals in the U.S. who do not have health insurance will have to sign up for a plan starting in 2014 that meets a basic set of standards or pay a tax penalty that will rise from $95 in 2014 to $695 in 2016. Health policy experts warn that without some incentive to buy insurance, people could wait until they got seriously ill to sign up for coverage, pushing up premiums for everyone.

In defense of the mandate, Verrilli said that if a person elected not to get health insurance but then got sick — as nearly everyone will at some point — that person would pass along costs to everyone else.

To prevent that, the Obama administration has argued that Congress can use its authority under the commerce clause of the Constitution to impose the mandate as a way to regulate health insurance. Roberts and Kennedy in the past have supported the federal government's broad authority to regulate commerce.

The Constitution says Congress has the power to "regulate commerce" and to impose taxes to promote the general welfare. The court has upheld federal laws regulating all manner of business, including agriculture, aviation and who can be served at the corner coffee shop.

The few positive moments for the administration came when the law's opponents got their turn to argue. Kennedy and Roberts pressed them to address the unique dynamics of the healthcare market, in which people who do not get health coverage affect everyone's costs.

"That is not true in other industries," Kennedy said at one point. "That's my concern in the case."

In his closing comments, Verrilli shifted gears and tried to convince the conservative justices of the virtues of judicial restraint.

"The Constitution leaves the democratically accountable branches of government" the choice of how best to regulate business and commerce, he said. "That is exactly the kind of thing that ought to be left to the judgment of Congress."

After Wednesday's third day of arguments, the justices will meet behind closed doors Friday to cast their votes and begin working on opinions.

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7:10 PM | 0 comments

Supreme Court again looks primed to confound a president

WASHINGTON — Eight years ago, George W. Bush administration lawyers went before the Supreme Court arguing that the justices should defer to the president during wartime and allow the commander in chief to decide how to treat "enemy combatants" held at Guantanamo Bay.

To their surprise, they lost. Justice Anthony M. Kennedy joined with the liberal bloc to rule that these prisoners had a right to a judicial hearing.

This week, President Obama's lawyers went before the Supreme Court arguing that the justices should defer to Congress when it comes to regulating health insurance. But they too ran into sharply skeptical questioning, this time from Kennedy and the court's conservatives.

The tenor of the comments over three days of oral arguments suggested the nine justices had made up their minds.

On Friday morning they will meet in private to cast their votes. Their decision will be kept secret within the court and is not likely to be announced until late June. Then, the court will issue a lengthy opinion for the majority explaining its ruling, along with one or more strong dissents.

Although the opinions will be revised and rewritten throughout the spring, the outcome will almost certainly depend on the votes cast Friday. It's rare for a justice to switch sides in a major case after the vote is taken.

This week's arguments cheered conservatives and shook liberal supporters of the federal healthcare law.

"I left the court each day feeling as good as could be," said Georgetown University law professor Randy Barnett, a libertarian and the leading academic critic of the law's mandate that all Americans buy health insurance. The arguments, he said, "couldn't have gone much better for our side."

Barnett has argued that although Congress has broad power to regulate commerce, it cannot force any person to buy a product or engage in commerce. For that reason, he contends that the individual mandate is unconstitutional.

Kennedy, seen as the crucial swing vote, seemed to adopt this view in Tuesday's arguments. He called the mandate to have insurance "unprecedented" and "a step beyond what our cases have allowed." He said the government had "a heavy burden" to justify such a law because it "requires an individual to do an affirmative act."

If President Obama's healthcare law is struck down, "this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting president," wrote George Washington University law professor Orin Kerr, a former Kennedy clerk.

Liberal advocates were taken aback by the hostile questioning from the court's conservative wing.

"I was very surprised to see how it played out. But I'm not completely despondent," said Ian Millhiser, a lawyer and policy analyst at the Center for American Progress. He said he remained hopeful that Kennedy and Chief Justice John G. Roberts Jr. would not go so far as to strike down a major piece of social legislation.

The nine justices meet alone in an ornate, wood-paneled conference room. The chief justice will begin the discussion, describe the issue to be decided and then say how he will vote. From there, the discussion moves in order of seniority, from Justice Antonin Scalia to the newest, Justice Elena Kagan.

If Roberts is in the majority, he will decide who writes the opinion. But since four separate questions raised by the healthcare law are before the court, there could be more than one majority opinion.

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3:28 AM | 0 comments

Supreme Court appears poised to nullify entire healthcare law

Paul Clement, wearing a blue tie on right, an attorney representing 26 states challenging the federal healthcare law, leaves the Supreme Court with others after Wednesday's arguments. (Jonathan Ernst, Reuters / March 28, 2012)

WASHINGTON — The Supreme Court, after three days of arguments on President Obama's healthcare overhaul, appeared ready to strike down not just the requirement that individuals have insurance, but the entire law, invalidating a major piece of domestic legislation for the first time since the Depression.

That prospect, unthinkable to many experts as recently as last week, will not be certain until the justices rule on the case, probably in June.

But the electric set of arguments that ended Wednesday revealed profound skepticism about the law by the court's five-member conservative majority, which appeared openly hostile to its scheme for mobilizing the federal government to achieve universal healthcare.

In question after question the nine justices revealed themselves as sharply divided as Congress and the American public over the virtues of Obama's law.

But unlike Congress — whose slim Democratic majority allowed passage of the law in 2010 — the court has a narrow majority of Republican appointees. If united, the five conservatives could vote to strike down the entire law. And during arguments Wednesday, they sounded prepared to do just that, including scrapping a major expansion of the Medicaid health insurance program for the poor.

"One way or another, Congress is going to have to reconsider this," said Justice Antonin Scalia, an appointee of President Reagan. "Why isn't it better to have them reconsider it in toto?"

Justice Ruth Bader Ginsburg, the senior liberal, appealed for a more cautious approach. She said the court should do a "salvage job" rather than undertake a "wrecking operation." But she looked to be outvoted by the conservatives.

The justices will meet in private Friday to cast their votes. Their comments during oral arguments do not always forecast the eventual ruling. And it has been widely assumed that the justices, particularly Chief JusticeJohn G. Roberts Jr.and JusticeAnthony M. Kennedy, would try mightily to avoid striking down a major law by a 5-4 vote. Solicitor Gen. Donald Verrilli Jr., the Obama administration's top lawyer, pleaded with the court for restraint Wednesday.

"Congress struggled with the issue of how to deal with this profound problem of 40 million people without healthcare for many years. And it made a judgment," Verrilli said as he wrapped up his arguments.

"This was a judgment of policy that democratically accountable branches of this government made by their best lights, and I would encourage this court to respect that judgment," he said.

The cause was taken up by the court's four liberal members, who urged their colleagues not to throw out the entire law, even if they find the provision requiring Americans to have health insurance unconstitutional.

"What's wrong with leaving it … in the hands of the people who should be fixing this, not us?" asked Justice Sonia Sotomayor.

The administration was prepared to accept a ruling that if the mandate was struck down, some other provisions should fall as well, such as the requirement that insurers sell coverage to people with preexisting conditions.

But there were few signs, if any, that any of the five conservatives were persuaded, including Kennedy, long considered the court's swing vote.

Like the other conservatives, Kennedy signaled deep unease with the provision that would require nearly all Americans to have health insurance starting in 2014.

On Wednesday, he seemed reluctant to excise that provision alone from the sweeping law for fear of harming the economic interests of the insurance companies, which he said would be "a more extreme exercise of judicial power … than striking the whole."

Scalia appeared openly scornful of the suggestion that Congress could fix the law if the court threw out the insurance mandate. "Don't you think it's unrealistic to say leave it to Congress, as though you're sending it back to Congress for Congress to consider it dispassionately?" he said.

Roberts and Justice Samuel A. AlitoJr.appeared equally leery. Justice Clarence Thomas, the fifth member of the conservative wing, did not ask any questions but is widely seen as eager to invalidate the Patient Protection and Affordable Care Act.

On Wednesday, the conservative justices targeted a provision that provides funding for states to enroll 17 million more people in their Medicaid programs over the next decade, a key pillar of the law's program for expanding coverage.

Kennedy seemed to accept the argument by 26 states challenging the law that they are being unjustly forced to administer a massive Medicaid expansion.

Verrilli tried to persuade the justices that the law's provision providing hundreds of billions of dollars to states to expand their Medicaid programs in 2014 was not "coercive."

Under the act, the federal government would pay more than 90% of the cost of expanding Medicaid to cover all poor Americans, while each state would retain responsibility for administering its own program, as has been the case since Medicaid was created in 1965.

That is a "big gift," said Justice Elena Kagan, who was joined by the three other liberal members of the court in defending the Medicaid expansion.

But the conservative justices appeared far more in line with Paul Clement, the attorney for the states. He argued that the aid would undermine state authority by leaving states effectively no choice but to expand Medicaid or face the possibility that the secretary of Health and Human Services would cut off all their aid.

"Why shouldn't we be concerned about the extent of authority that the government is exercising, simply because they could do something less?" Roberts said, brushing aside Verrilli's efforts to assure the court that no administration would actually take such a step.

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