As reported by Mike Sacks for the Huffington Post

WASHINGTON — After the Supreme Court oral arguments in the health care case Tuesday morning, the Obama administration better start preparing for the possibility of a future without the individual mandate.

From the very start, things did not go well for the government’s argument that the requirement under the Affordable Care Act that virtually all Americans have health insurance or pay a penalty is constitutional.

U.S. Solicitor General Donald Verrilli began his argument not with his usual calm and clear delivery, but rather with a case of coughs that seemed to take him off his game.

And just as he was starting to recover his composure, Justice Anthony Kennedy, a key swing vote, asked, “Can you create commerce in order to regulate it?” Kennedy’s question adopted the framing of the case put forward by those challenging the mandate.

From there, the barrage against Verrilli did not relent until he sat down nearly an hour later.

The conservative justices appeared particularly concerned that if they upheld the mandate, Congress would be loosed to regulate nearly anything else it deemed a national problem.

Verrilli argued that the health care market’s unique features allow Congress to require the uninsured to purchase health insurance.

“The health care market is characterized by the fact that, aside from the few groups that Congress chose to exempt from the minimum coverage requirement, … virtually everybody else is either in that market or will be in that market,” Verrilli said. Plus, he said, “people cannot generally control when they enter that market.”

Chief Justice John Roberts responded, “The same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.”

When Verrilli said those services do not constitute markets, Justice Samuel Alito asked what would keep the government from applying to burial services — which Verrilli conceded do constitute a market — the same rationale about preventing cost-shifting that it used for health care.

Verrilli never quite answered that question, pointing instead to the “billions of dollars of uncompensated costs” that distort the health insurance market.

Alito then flipped the tables, saying that the mandate will require young, healthy people to pay more per year for insurance than they would pay for health care out-of-pocket, thus forcing them “to subsidize services that will be received by somebody else.”

“If you’re going to have insurance, that’s how insurance works,” Justice Ruth Bader Ginsburg argued back, in the first of the four-justice liberal bloc’s attempts to shore up the government’s case.

She and Justices Stephen Breyer and Sonia Sotomayor would all leap in to make the government’s case themselves after Justice Antonin Scalia invoked the prospect of a broccoli mandate.

Verrilli could not gain traction with his alternative arguments that the mandate falls within Congress’ ability to pass laws “necessary and proper” to effectuate its constitutionally enumerated power to regulate commerce. Scalia, who relied on this clause in 2005 to uphold a federal ban on cultivating marijuana for personal consumption, said the individual mandate may be necessary to carry out the Affordable Care Act, but it is not proper “because it violated the sovereignty of the States.”

“If the government can do this, what, what else can it not do?” Scalia asked.

After a brief halftime, Paul Clement, a former U.S. solicitor general, began his argument on behalf of the 26 states challenging the mandate.

If Verrilli struggled, Clement shined. The conservative justices remained largely silent as he skated through the liberals’ heavy questioning.

“The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce,” he began, employing the same terms Kennedy used to describe the mandate throughout the government’s argument.

When Breyer rolled out a multi-part question seemingly designed to be his tour de force on the mandate’s obvious constitutionality, Clement cut the legs out from under it, noting that Breyer was talking about the wrong constitutional provision.

Roberts then asked Clement to address the government’s contention that “everybody is in this market, so that makes it very different than the market for cars.” But it was hard to view this question as anything but diplomatic after Roberts’ own clear antagonism to the same contention during Verrilli’s hour.

Instead, Roberts appeared to favor the challengers’ belief that the mandate regulates the insurance market, not the health care market, and the consumption of insurance, unlike health care, is not an inevitable fact of life.

“We don’t get insurance so that we can stare at our insurance certificate,” Justice Elena Kagan responded when Clement offered her that argument. “We get it so that we can go and access health care.”

Clement parried that remark and concluded his time before the justices apparently unscathed by the liberals’ attacks.

Michael Carvin, representing the National Federation of Independent Business and several individuals, used his half hour as a sort of end-zone dance for the seeming defeat of the mandate, going so far as to chuckle at questions from Breyer and Sotomayor.

When Verrilli returned for his rebuttal, all he could do was remind the justices of their “solemn obligation to respect the judgments of the democratically accountable branches of government.”

Whether one or more of the Supreme Court’s conservatives will ultimately come to that conclusion, and thereby defy the expectations they set on Tuesday morning, is anyone’s guess.

 

Friday, January 21, 2011

This whole health-care thing isn’t quite working out the way Republicans planned. My guess is that they’ll soon try to change the subject – but I’m afraid they’re already in too deep.

Wednesday’s vote to repeal President Obama’s health insurance reform law was supposed to be a crowning triumph. We heard confident GOP predictions that cowed Democrats would defect in droves, generating unstoppable momentum that forced the Senate to obey “the will of the people” and follow suit. The Democrats’ biggest domestic accomplishment would be in ruins and Obama’s political standing would be damaged, perhaps irreparably.

What actually happened, though, is that the Republican majority managed to win the votes of just three Democrats – all of them Blue Dogs who have been consistent opponents of the reform package anyway. In terms of actual defectors, meaning Democrats who changed sides on the issue, there were none. This is momentum?

The unimpressive vote came at a moment when “the will of the people” on health care is coming into sharper focus. Most polls that offer a simple binary choice – do you like the “Obamacare” law or not – show that the reforms remain narrowly unpopular. Yet a significant fraction of those who are unhappy complain not that the reform law went too far but that it didn’t go far enough. I think of these people as the “public option” crowd.

A recent Associated Press poll found that 41 percent of those surveyed opposed the reform law and 40 percent supported it. But when asked what Congress should do, 43 percent said the law should be modified so that it does more to change the health-care system. Another 19 percent said it should be left as it is.

More troubling for the GOP, the AP poll found that just 26 percent of respondents wanted Congress to repeal the reform law completely. A recent Washington Post poll found support for outright repeal at 18 percent; a Marist poll pegged it at 30 percent.

In other words, what House Republicans just voted to do may be the will of the Tea Party, but it’s not “the will of the people.”

“The test of a first-rate intelligence,” F. Scott Fitzgerald wrote, “is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.” By this standard, House Republicans are geniuses. To pass the “Repealing the Job-Killing Health Care Law Act,” they had to believe that the work of the nonpartisan Congressional Budget Office is both authoritative and worthless.

The CBO, which “scores” the impact of proposed legislation, calculated that the health-reform law will reduce federal deficits by at least $143 billion through 2019. Confronted with the fact that repeal would deepen the nation’s fiscal woes, Republicans simply claimed the CBO estimate to be rubbish. Who cares what the CBO says, anyway?

Er, um, Republicans care, at least when it’s convenient. Delving into the CBO’s analysis, they unearthed a finding that they proclaimed as definitive: The reform law would eliminate 650,000 jobs. Hence “Job-Killing” in the repeal bill’s title.

One problem, though: The CBO analysis contains no such figure. It’s an extrapolation of a rough estimate of an anticipated effect that no reasonable person would describe as “job-killing.” What the budget office actually said is that there are people who would like to withdraw from the workforce – sometimes because of a chronic medical condition – but who feel compelled to continue working so they can keep their health insurance. Once the reforms take effect, these individuals will have new options. That’s where the “lost” jobs supposedly come from.

The exercise in intellectual contortion that was necessary for the House to pass the repeal bill will be an excellent tune-up for what’s supposed to come next. “Repeal and replace” was the promise – get rid of the Democrats’ reform plan and design one of their own. This is going to be fun.

It turns out that voters look forward to the day when no one can be denied insurance coverage because of preexisting conditions. They like the fact that young adults, until they are 26, can be kept on their parents’ policies. They like not having yearly or lifetime limits on benefits. The GOP is going to have to design something that looks a lot like Obamacare.

Meanwhile, Obama’s approval ratings climb higher every week. Somebody change the subject. Quick!