Skeptical questioning of the individual mandate at the heart of President Barack Obama’s health care overhaul by the Supreme Court’s conservative bloc, and swing vote Justice Anthony Kennedy in particular, raised the hopes of top Republicans on Tuesday that the court will overturn the law.
“It was noteworthy that the four more liberal members of the court were mainly peppering the plaintiffs and the other five were mainly peppering the government, leading us to hope this awful law will be overturned,” Senate Minority Leader Mitch McConnell (R-Ky.) said after sitting in on the arguments.
Senate Republicans and a trio of GOP state attorneys general cited the questions posed by Kennedy — which showed his concern about the law’s reach — as proof that the court was apt to strike down the law’s requirement that individuals purchase health insurance.
Sen. Ron Johnson (R-Wis.), who ran for election in part to overturn the law, called Tuesday’s arguments pivotal to the nation’s history.
“I was encouraged that they were asking the right questions,” he said. “Can the government compel you to buy a product?”
Democrats, however, comforted themselves by saying the sharp questions don’t necessarily illustrate how the justices will vote.
“I think there are probably a few votes on each side that are pretty determined and a few votes up for grabs,” Sen. John Kerry (D-Mass.) said. But Kerry later said it would be a big mistake to draw firm conclusions about the opinions of Kennedy or other justices based on the questions alone.
“Sometimes people are playing devil’s advocate, sometimes they are trying to flesh out their thinking,” he said. “Anybody makes a big mistake to take a question and say this is how somebody’s going to vote.”
Senate Majority Leader Harry Reid (D-Nev.) brushed off a prediction from CNN analyst Jeffrey Toobin that the law was in grave trouble and likely to be overturned.
“I think you cannot base what the court’s going to do based on the oral argument,” Reid said. “I think that the argument went just fine.”
But Reid conceded that a decision to overturn the law actually could benefit the president.
“There’s a significant school of thought that the administration is in a better position for the election if it’s turned down,” he said.
Other Senate Democrats tried to deflect criticism of the mandate — the most unpopular part of the law — by tying it to Republicans, including GOP presidential frontrunner Mitt Romney, the former governor of Massachusetts.
Democratic Conference Vice Chairman Charles Schumer (N.Y.) recited for reporters the history of conservatives and Republicans supporting the policy.
“What we’re seeing now is baffling. The Republicans were the fathers of the individual mandate, and now they want to give it up for adoption,” Schumer said during a Capitol Hill news conference.
But Kennedy did appear to give Republicans more to cheer than Democrats. Early on, he challenged Solicitor General Donald Verrilli Jr., who was arguing for the Obama administration, over whether the health insurance mandate represented an unprecedented use of federal power.
“Assume for a moment this is unprecedented,” he said, regarding the requirement that individuals take an affirmative action to buy a product. “Do you not have a heavy burden to show authorization under the Constitution?”
He later added, “The question is: Are there any limits on the Commerce Clause?”
And Kennedy seemed troubled by requiring people to buy a product, noting that laws do not typically require citizens to take an action — even to rescue a blind person about to be struck by a car. Requiring people to take an action “changes the relationship of the federal government to the individual in a very fundamental way,” he said.
Verrilli got off to a shaky start, stumbling over his first words — which Senate Judiciary Chairman Patrick Leahy (D-Vt.) dismissed as allergies — before arguing for the mandate as the only way to preserve a private insurance market while ending discrimination based on pre-existing conditions.
Verrilli told Kennedy and the other justices that there is ample authorization for the mandate in the Constitution, both under the Commerce Clause and under the government’s taxing powers. And he noted the unique nature of the health care market — that all or nearly all people inevitably procure health care services.
Justice Antonin Scalia scoffed at that. Everybody is in the market for food, therefore you could make everybody buy broccoli, he posited at one point.
Justice Ruth Bader Ginsburg rebutted Scalia, however, in one of many exchanges between the liberal and conservative justices. “Unlike food or any other market ... when disaster strikes, you may not have the money” to pay for health care, she said.
Verrilli said the Commerce Clause does have limits and that the government could not require people to buy a commodity to stimulate demand.
Chief Justice John Roberts probed both sides of the debate. He asked Verrilli: “Can the government force you to buy a cellphone” to make it easier for rescue services to find you? Justice Samuel Alito asked whether the government could force everyone to buy burial insurance because everyone dies.
Verrilli said health insurance is different because of the massive cost-shifting that takes place when uninsured people use the health care system and don’t pay.
Alito also questioned Verrilli over how some people might end up paying much more for insurance than their actuarial risk. “The mandate is forcing these people to provide a huge subsidy to the insurance companies,” he said, adding that it requires them to buy insurance that will be consumed by someone else. But Ginsburg interjected: “That’s how insurance works.”
Verrilli said the court has a duty to rule that Congress has the authority to regulate a national problem that has more than 40 million people without health insurance and to defer to Congress on the means in which to do so.
Michael Carvin, representing the National Federation of Independent Business, warned that if the court allowed the mandate to stick, there would be no limit to what Congress could force people to do.
But Roberts challenged that, noting the government’s contention that everyone is already in the health care market and the government is merely regulating when they have to pay for it.
The justices had an audience heavy with history, including Rep. John Dingell (D-Mich.), the dean of the House who has been pushing universal health insurance for decades, Senate Finance Chairman Max Baucus (D-Mont.), a principal author of the bill, McConnell and more than 20 other Members of Congress, as well as Attorney General Eric Holder, Secretary of Health and Human Services Kathleen Sebelius and top White House aide Valerie Jarrett.
“They are going to learn, hey, this thing isn’t so bad after all,” Baucus predicted after listening to the arguments.
Johnson, however, dismissed such talk, saying Americans dislike the law and don’t believe the federal government can run one-sixth of the economy.
“I felt like standing up a couple of times and yelling ‘freedom!’” he joked.