Look carefully at what Justice Kennedy just said: Don’t want to impose new risks on the insurance companies. Check. Striking down all of the 2,700 page statute—much of which regulates breastfeeding, Native American health, black lung treatment, and other things unrelated to the individual mandate—that’s the new judicial restraint.
Again, like the day before, not much law happens this morning. It’s all mainly a sort of free-form ramble by the justices over the complexities of congressional lawmaking. Justice Scalia opines freely on how hard it will be to repeal the remainder of the Affordable Care Act if the court leaves some portion of it standing: “You can't repeal the rest of the act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new act. So you're just put to the choice of I guess bankrupting insurance companies and the whole system comes tumbling down, or else enacting a federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure.”
None of the justices appears delighted at the prospect of striking down the law in its entirety, with Breyer waving around the portions of the statute that arguably don’t have anything to do with the individual mandate, and Paul Clement offering a kind of hip-bone-connected-to-the-thigh-bone assessment of how the many parts of the law are too interconnected to be separated. But the justices seem no more delighted at the prospect of hacking out only the two major parts of the law, as the Obama administration suggests. Nor do there seem to be many takers for the prospect of letting the whole thing stand, save the mandate. There are even murmurs that any remedy might be so embarrassing that the law could survive after all.
The afternoon offers yet another opportunity for the court to forgo reading text and citing cases—the things they are meant to be good at—so they can have a good old-fashioned, foot-stomping policy debate about Bad Stuff the Federal Government Might Some Day Do. The theory that the states get such a great deal from the Medicaid expansion that they are “coerced” into participating was always deemed far-fetched. So much so that no lower court accepted the argument. But that didn’t stop the justices from having it briefed and argued, because, well, if the individual mandate can be struck down on the prospect that Congress may someday pass a broccoli mandate, the Medicaid expansion should surely be struck down on the likelihood that the secretary of Health and Human Services is like a gun-waving hostage taker forcing you to choose between “your money and your life.”
Justice Kagan can’t seem to understand why the case is even before her. "Why is a big gift from the federal government a matter of coercion?" Is there really something unconstitutional happening when the federal government offers the states what she refers to as a "boatload of federal money"? Clement does his usual deft job of explaining why boatloads of money can be obscenely coercive and while the justices don’t seem entirely persuaded, by the time Don Verrilli rises to defend the Medicaid expansion, the discussion has disintegrated again into a Morning Joe-style roundtable about states’ rights, the states’ dangerous addiction to New Deal federal programs, and the possibility of sending the states back to rehab to work out their co-dependency issues.
At some point, Kagan stops smiling at the silliness of the coercion talk and begins to look a little ill. Breyer also looks grimmer and grimmer as the afternoon wears on. Millions of people won’t be added to the welfare rolls because it would hurt the states’ dignity.
Who knows whether there are five votes here to strike the Medicaid expansion? There’s chatter along the way of the merits of the stimulus bill as well. One starts to get the sense that if HIPAA was on the table it could go down. The distinctive vibe as the three-day marathon closes is that the court has become a kind of free-floating panel from Dancing With the Stars: “Eh. That Title IX was a little floppy in the arms, no?”
Amid all the three-day psychodrama, it’s easy to get confused about what’s happened and what hasn’t. Court watchers seem to generally agree that the individual mandate is in real peril and will rise or fall with Chief Justice Roberts and Justice Kennedy. Court watchers also agree that 19th-century tax law—while generally adorable—will not prevent the justices from deciding the case by July. And they also agree that they may have counted five justices who appear willing to take the whole law down, along with the mandate, and the Medicaid expansion as well.
But the longer they talked, the harder it was to say. A lot of today’s discussion started to sound like justices just free-associating about things in the law they didn’t like. That doesn’t reveal all that much about the interplay between the four separate challenges—what happens when they all have to be looked at together—or anything at all about what will happen at conference or in the drafting of opinions. Could the five conservative justices strike down the entire health care law, and take us into what Kagan described this morning as a “revolution”? They could. Will they? I honestly have no idea anymore. As silent retreats go, this one was a lot less enlightening than I’d hoped.