Nobody was doing well by the time oral arguments in the Health Care cases ended at 2:30 p.m. Wednesday. Some Justices were sniping back and forth. The lawyers were showing the strain.
And Justice Antonin Scalia was telling jokes.
"[Y]ou know-the old Jack Benny thing, Your Money or Your Life, and, you know, he says 'I'm thinking, I'm thinking,'" Scalia said from the bench. "It's-it's funny, because it's no choice. ... But 'your life or your wife's,' I could refuse that."
"He's not going home tonight," Justice Sonia Sotomayor threw in as the crowd laughed.
"That's enough frivolity for a while," Chief Justice John Roberts (nobody's straight man) said sternly. I think he, like me, was afraid we would never get home that night, as if the Supreme Court had sailed into some forensic dimension where the clock hands were frozen in ice.
If you want to know how strange things got, consider that a Justice of the United States Supreme Court suggested that the Court should invalidate the entire 2,700-page Patient Protection and Affordable Care Act (ACA) merely to save him the trouble of reading the whole thing.
That suggestion came from waggish Scalia, who wore the chicken-eating smile of a man who has counted to five. He made the comment during the morning argument, which concerned an issue-"severability"-that was supposedly hypothetical: If the Court strikes down the minimum-coverage (i.e., "individual mandate") provision of the ACA, should it strike down only that part, other related parts as well, or the whole thing? Scalia's question captures the conservative majority's attitude toward Congress. Congress wrote this monstrosity; it is beneath our notice. "What happened to the Eighth Amendment?" Scalia asked assistant solicitor general Erwin Kneedler. "You really want us to go through these 2,700 pages?"
The government argues that if the mandate is struck, the Court should also strike only the "guaranteed issue" and "community rating" provisions, which forbid discrimination in issuing policies or premium rates on the basis of pre-existing conditions. Paul Clement, arguing for the 26 states that have challenged the Act, echoed Scalia: Everything must go. H. Bartow Farr III, a court-appointed amicus, argued that the Court could strike only the mandate and leave everything else intact. (Fresh, rested, and unencumbered by an actual client, Farr made the best argument of the day, and he was the only one the Justices listened attentively to-perhaps because they had not heard him for hours Monday and Tuesday.)
The severability argument did not seem hypothetical, but deadly earnest, as the government and the more liberal Justices scrambled to preserve some shred of the progressive victory embodied in the ACA. Hefting a copy of the statute, Justice Stephen Breyer pointed out that it includes a multitude of provisions, governing, for example, Black Lung disease and the Indian Health Service: "there is biosimilarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas, there is the CLASS Act, etcetera." These things have nothing to do with the mandate. Why should the Court strike them? But to Scalia, the Act should be invalidated because Congress can't be trusted to fix it. "It's unrealistic to say leave it to Congress, as though you're sending it back to Congress for Congress to consider it dispassionately: On balance, should we have his provision or should we not have provision? That's not what it's going to be."
Justice Anthony Kennedy turned conventional doctrine on its head. Judicial restraint would seem to require invalidating as little of the ACA as possible. Not here though, Kennedy said to Kneedler: "You are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if ... one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. ... That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than ... striking the whole."
With the Sphinx's words, we knew all we could possibly know on Wednesday-that if the majority wants to kill the entire act, they have a rationale that sounds faintly better than "nanny nanny boo boo."
In the afternoon, the question was was whether the Court should move beyond the ACA and gut the government's spending power, the principal tool of cooperative federalism. In such programs, Congress appropriates funds to the states, and if the states accept them, they agree to administer the funded programs according to federal standards. The ACA offers states massive new Medicaid funding, but to get it they must expand their eligibility rules for low-income people. Clement argued that this was "coercive." The precedent for this argument was as follows: nothing. But seriously, he told the Court, this Medicaid expansion was such a good deal for the states that they couldn't turn it down, and that was coercion. And besides, he said, if they didn't comply, the statute said they would lose all their Medicaid funding.
Justice Breyer, seemingly tired of being a wallflower at the right-wing orgy, came in hot at treetop level with the statute in his hand. Clement, he said, had misstated the law. The statute relating to fund cutoffs is not new; it was passed in 1964. It says, in this context, that if the states refused to enroll the new clients, the Secretary could deny them the new funds, and perhaps more in her discretion. "I could not find one case where the secretary ever did go further" than denying the new funding, Breyer said. "But I also would think that the secretary could not go further where going further would be an unreasonable thing to do, since government action is governed by the Administrative Procedure Act, since it's governed by the general principle [that] it must always be reasonable."
Solicitor General Donald Verilli had done well on Monday, and had borne up bravely on Tuesday; Wednesday afternoon his wheels came off. He had one job: to tell the Court that the federal government would not use the Spending Power to coerce states, and give them a proposed rule that would prevent that. It was the obvious question, and he should have been ready.
But he wasn't
Chief Justice Roberts asked him whether a threat of total cutoff would be coercive. Verrilli refused even to engage: "Well, Mr. Chief Justice, it would not be responsible of me to stand here in advance of any particular situation becoming - coming before the Secretary of Health and Human Services and commit to how that would be resolved one way or another," he said.
In other words, no rule. Roberts, as any competent judge would, kept asking the question over and over. Finally Breyer threw Verrilli a life preserver. Surely, he asked, the secretary's discretion to cut off funds could not be an "arbitrary, capricious abuse of discretion," could it?
In Alcove E of the Press Section, several whispered voices spoke together. "Say yes. Say yes. Say yes."
But Verrilli would not. "I'm not trying to be reluctant. I understand how this works. I'm trying to be careful about the authority of the Secretary of Health and Human Services and how it will apply in the future."
Maybe so; but at the end of the argument the question was suddenly not how the Spending Power would apply, but whether it would continue to exist. The Court may have simply been sharpening its claws Wednesday; but by 2:30 p.m. it seemed possible the majority, out of sheer punchiness, might gut the Commerce Clause and the Spending Clause in one case, hurtling us into a new world where Congress cannot regulate commerce, can't fund conditional programs, and maybe can't even reduce present funding levels to the states.
As I stumbled gratefully from the chamber, I thought about Scalia's jolly jokes. The German playwright Bertolt Brecht once wrote, "The man who laughs has not yet heard the terrible news."
I hope I am wrong, but I fear we may hear terrible news before July.
