On December 10, 1935, during oral argument before a hostile Supreme Court, then-Solicitor General Stanley Reed collapsed at the lectern. (He recovered and went on to serve on the Court himself.) Let history show that Solicitor General Donald Verrilli did not stagger yesterday under a Four Horseman-style onslaught of conservative questioning that seemed to leave the government without a path to victory in the "minimum coverage" phase of the Health Care Cases.
Yesterday's argument concerned the centerpiece of the Affordable Care Act (ACA): the minimum-coverage, or individual mandate, provision. Under this rule, taxpayers who are not covered by employer or government health insurance will, after 2014, be required either to purchase an individual policy or pay a penalty on their tax returns. The requirement is designed to widen the insurance pool so that two other parts of the Act-one requiring companies not to discriminate on the basis of health risk, and the other forbidding them from refusing applicants with pre-existing medical conditions-don't bankrupt the insurance companies. The question is whether "forcing" consumers to buy a commercial product is a Commerce Power bridge too far.
No one with an ideological map of the Court would have been surprised by a single question or questioner. Justice Antonin Scalia's hostility was patent; there is no doubt about his vote, nor about that of Justice Clarence Thomas. Chief Justice John Roberts and Justice Samuel Alito attacked the ACA from an economic-theory point of view. Their problem was that minimum-coverage polices will be actuarially unsound because they include sick and older people in the pool. "[T]he mandate is forcing these [healthy] people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve," Alito said. "It is requiring them to subsidize services that will be received by somebody else."
Roberts was concerned because the minimum-coverage policies covered services he didn't think people need: "The policies you're requiring people to purchase must ... must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment or pediatric services, and yet that is part of what you require them to purchase."
Both Justices asked Verrilli aggressive, pointed questions; their questions of the two attorneys for the challengers seemed pro forma. I scored them as "no" votes on the provision.
That leaves Justice Anthony Kennedy. He posed to Verrilli one of the big questions he is fond of: "Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. ... When you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?"
In case anyone missed what was troubling him, he repeated the same question later. In tort law, individuals have no duty to rescue others, he said. But under the ACA, individuals must buy insurance in part to make sure others are covered. "That changes the relationship of the federal government to the individual in a very fundamental way."
For those scoring at home, that's two nos, two "$%#* nos," and one "I have a bad feeling about this." Some press-room observers made much of Kennedy's final question to Michael Carvin, representing the private challengers: "In the insurance and health-care world ... the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case."
Does this mean Kennedy is on the fence? Perhaps. I took the question more as a gentle rebuke to Carvin, who was overplaying his hand.
No matter what you make of Kennedy's question, there was no sign of the 6-3 or 7-2 outcome many Court watchers had predicted.
The conservative justices had, in essence, three objections to the minimum-coverage provision. To Scalia (and presumably Thomas) it is boundless tyranny and will soon lead to mandates to buy cars and join health clubs. To Roberts and Scalia, it is economically suboptimal. And all of them worry that the power to enact the mandate will grant Congress a power over individuals that future Courts will be unable to cabin.
The four moderate-to-liberal Justices fought back against the onslaught. Justice Ruth Bader Ginsburg pointed out that the cost-shifting that bothered Alito is more or less the point of insurance, and of Social Security. Justice Elana Kagan reminded Verrilli that "in this context, the subsidizers (young people) eventually become the subsidized (old people)." Justice Sonia Sotomayor reminded the challengers over and over that they have already conceded that Congress can require people to buy health insurance as a condition of receiving health care; the only question left is whether healthy people can wait until they get sick, then demand health insurance in the ambulance.
But Tuesday was Justice Stephen Breyer's moment. His expansive and intricate question are sometimes incomprehensible, but yesterday he produced this doozy:
Justice Kennedy asked, can you, under the Commerce Clause, Congress create commerce where previously none existed. Well, yes, I thought the answer to that was, since McCulloch versus Maryland, when the Court said Congress could create the Bank of the United States which did not previously exist, which job was to create commerce that did not previously exist, since that time the answer has been, yes. I would have thought that your answer-can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn't the answer be, yes, of course, they could.
Verrilli finally sat down, having argued for a solid hour. Paul Clement, the conservative movement's Plumed Knight, rose to speak for the 26 state governments challenging the mandate. To paraphrase something Graham Greene once said of Fred Astaire, Paul Clement is the nearest physical equivalent we shall ever have of Mr. Jiminy Cricket: humble, friendly, non-threatening, and at least seemingly wise. Clement aimed at Roberts and Alito by arguing that "people who don't want to purchase health insurance and also have no plans of using health-care services in the near term ... are essentially the golden geese that pay for the entire lowering of the premium." There is no difference, he suggested, between Congress requiring the purchase of health insurance and Congress deciding that "some private company has come up with a great new wonder drug that would be great for everybody to take, it would have huge health benefits for everybody; and by the way, also, if everybody had to buy it, it would facilitate economies of scale, and the production would be great, and the price would be cheaper-and force everybody in the health-care market, the actual health-care market, to buy the wonder drug." He challenged Justice Breyer on the Bank of the United States, cited Hamilton and Madison, and digressed into a dispute about whether a tax on not having a carriage would violate Article I § 2's prohibition on unapportioned direct taxes.
Minimum coverage seemed all but dead when Michael Carvin, representing the National Federation of Independent Business and other private parties, rose. But if ever a performance deserved to snatch defeat from the jaws of victory, it was Carvin's argument yesterday. Pompous and condescending, he raised his voice, wagged his finger at the Court, and delivered a lecture. He seemed unwilling to entertain questions, especially from the Court's three female Justices, and once talked right across a question by Justice Kagan.
The substance of what he was saying also went far beyond Clement's arguments. The mandate must go because the government could not prove that every healthy consumer would ever get sick; he said some wouldn't. Justice Breyer asked whether if "there was some terrible epidemic sweeping the United States, and we couldn't say that more than 40 or 50 percent [would die] ... you'd say the federal government doesn't have the power to get people inoculated, to require them to be inoculated, because that's just statistical."
"My answer is no, they couldn't do it," Carvin said. I suspect Paul Clement would have found a different answer.
Verrilli rose to rebut: "The Court, as the Court said in [an earlier case], has a solemn obligation to respect the judgments of the democratically accountable branches of government, and because this statute can be construed in a manner that allows it to be upheld in that way, I respectfully submit that it is this Court's duty to do so."
Then, having fought without buckling, the SG rested for the day.
