Kate Hicks

 

After a three-day marathon of oral arguments, during which the Supreme Court considered various facets of the Patient Protection and Affordable Care Act, final impressions everywhere are mixed.

Liberal supporters of the law have melted into hysterics on live television over the “train wreck” that was Solicitor General Donald Verrilli’s defense. Smeared in red atop the Huffington Post were, “Obamacare on the Brink” and “Disaster.” James Carville now claims that Democrats will “win” if the Court overturns the mandate.

Conservatives, meanwhile, are practically dancing in the street at the prospect of an unconstitutional ruling, which once seemed a remote possibility. It seems like there’s a bit of a cautious tone in the celebrating – after all, don’t want to raise hopes too much – but the Right is certainly optimistic.

And all this goes to show that we counted a fair number of unhatched chickens.

Between the Left’s certainty of the mandate’s constitutionality, and the Right’s pessimism regarding the Supreme Court (or should I say, Justice Kennedy), everyone seemed to believe that Obamacare would come away from oral arguments relatively unscathed.

In reality, it was hardly the cakewalk many Obamacare proponents envisioned.

On Monday, the Court considered whether it was too soon to rule on the issue of the mandate. Court watchers speculated that the Justices might use the Anti-Injunction Act as their final escape hatch to make a ruling on the mandate. The Court, they argued, might not want to undertake such a politically charged topic in an election year. If there’s a way for them to punt, they’ll likely do it.

But they seemed unconvinced of the fact that the mandate was a tax, pointing to the fact that it’s not in existence to raise revenue – in other words, it’s not a tax in the traditional sense of the word. The Justices hit the court-appointed lawyer arguing in favor of AIA jurisdiction pretty hard, and seemed convinced by the states’ and federal government’s arguments to the contrary. In all likelihood, they will rule (possibly 7-2 or 8-1) that the mandate penalty is not a tax, and therefore, it is not too soon for the Court to consider the individual mandate’s constitutionality.

That controversial policy was next on the docket, and it certainly took a beating. Popular sentiment, especially in the media, predicted that Justice Kennedy may side with the liberal wing of the Court, and that Chief Justice Roberts may join him. However, while the two did hint at some willingness to uphold the mandate, they both expressed considerable skepticism about the federal government’s lack of a limiting principle.

Justice Kennedy even went so far as to question how the mandate would permanently alter the relationship the federal government has to individuals. While it’s by no means safe to say he’ll strike down the mandate, he was certainly ambivalent on the issue, and hit the Solicitor General much harder than expected.

General Verrilli, for his part, didn’t do his case many favors. At several points, Justices Kagan and Ginsburg stepped in to essentially state his case for him. Commentators on both the right and left joked and/or despaired that the government’s case would have fared better if Justice Kagan had been arguing it.

By contrast, Paul Clement, lawyer for the states, presented a brilliant show, deftly answering the Justices’ questions while attacking the government’s weaker points. He was especially strong when arguing that the mandate had no limiting principle, and that nothing could stop the government from handing itself greater power for the sake of another “national emergency.” Conventional wisdom suggests that oral arguments rarely change a Justice’s mind, but it’s possible that Mr. Clement’s presentation could influence Justices Kennedy and Roberts’ decisions.

When weighing the mandate, the Justices will consider two conflicting views and decide which takes precedence. Can Congress regulate people just outside the insurance market because of the effect they have on that market – and therefore the country at large? Or is that power too unlimited – so much so that it can’t simply be confined to insurance?

Five Justices seemed very concerned over the latter principle. It’s imprudent to suggest that they’ll absolutely rule in that block, but a 5-4 decision overturning the mandate is a definite possibility.

Severability was initially thought to be an easy decision against the states. The real question seemed to be whether the federal government would get its way and see the guaranteed issue and community rating provisions tossed out, too. Again, the Justices proved they’re capable of surprising.

In fact, the government’s suggestion that the Justices could pick and choose pieces of the law to uphold and pieces to strike down seemed anathema to them. Justice Kennedy contemplated whether such divining of congressional intent was more an example of judicial activism than throwing the law out entirely.

If the Justices find the mandate unconstitutional, their next decision will likely be between throwing it all out, or keeping everything but the mandate. They seemed perturbed by the impending financial disaster that adverse selection would wreak on the insurance market, without the mandate to subsidize guaranteed issue. If they decide to take the financial reality of the law into consideration, then it’s very possible the whole thing goes. However, they – especially the Chief Justice – emphasized that the Court cannot and should not “carry out congressional intent.” Thus, if Congress fears the law without the mandate will do economic harm, it is Congress’ job to provide a legislative remedy, by repealing or rewriting the law. The best prediction suggests the Justices will not pick and choose pieces of the law to uphold or throw out. A bold – but not completely unrealistic – prediction suggests they throw out the whole thing.

Finally, they tackled the issue of Medicaid expansion. The burden here lay with the states to prove that Congress had exceeded its power of persuading the states to conform to a federal standard, and that instead, Congress had “made them an offer they couldn’t refuse.” It was a tall task for Mr. Clement and his team, but the Justices seemed to find the coercion argument somewhat, if not entirely, compelling.

Chief Justice Roberts seemed willing to accept the premise that the government had offered too much money, and at too high a cost of refusal, for the states to say no. Justice Kennedy, too, admitted, “the states have no choice.” They saw the contentious nature of the Secretary of Health and Human Services’ power to revoke all Medicaid funding if the states refused expansion. And the Justices weren’t so sure they liked it. However, the lack of a readily-available of federal coercion, coupled with the states’ post-New Deal willingness to be federally dependent, suggest they could rule against the states. Most likely, they will not find Medicaid expansion to be coercive. Bear in mind, however, their willingness to consider overturning the law entirely. If that’s the case, this Medicaid ruling doesn’t matter anyway.

Of course, the oral arguments aren’t perfect predictors of the final decision, and some joke that a ruling depends on Justice Kennedy’s mood that day. But if nothing else, this week proved that the Court isn’t some bastion of activism, existing solely for the purpose of wielding unchecked power. The Justices listened, and now they’ll decide. And no matter the ruling, come June, Congress will have a new understanding of the limits – or lack thereof – to its power.


Kate Hicks

Kate Hicks is one of Townhall.com's web editors. You can follow her on Twitter @KateBHicks.