Obamacare Looks To Be Hanging on a Prayer

Oral argument from the court.
March 28 2012 10:12 PM

A Moment of Silence for Obamacare

Prayers, depression, and Latin phrases. Obamacare looks to have had another very bad day.

U.S. Supreme Court members pose for photographs in the Supreme Court building.
The Supreme Court heard three days of oral argument on the Affordable Care Act

Chip Somodevilla/Getty Images.

Read all of Slate’s coverage about the Affordable Care Act.

It bears pointing out that for all of the six-plus hours of Supreme Court oral argument on the Affordable Care Act, the titans of the legal world—congressmen, appellate litigators, and heads of major national advocacy groups—were forced to surrender their cellphones, newspapers, and personal assistants in order to sit in perfect silence in the Supreme Court chambers. If you were to strip them of the sober gray suits and swap in a bowl of lentils, the last three days could well represent the legal world’s highest powered silent meditation retreat. Some of these folks haven’t been quiet for two consecutive waking hours since the 1960s.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The justices are anything but quiet, and as the two arguments roll on—90 minutes this morning on whether the whole act must fall if the individual mandate falls and almost 90 minutes this afternoon on the constitutionality of the health care law’s Medicaid expansion—the justices start to become almost punchy with all the melodrama. At one point during the morning session, Justice Antonin Scalia, reading from an opinion in a different case, lapses into Latin. Later Justice Stephen Breyer attempts to order the parties into a settlement conference to determine which provisions of the health care law should be allowed to survive. Justices Scalia and Elena Kagan bicker quietly over how much work their respective clerks will need to do in order to sever the mandate; and super-lawyer Paul Clement, arguing on behalf of the 26 states that want the court to strike down the law in its entirety, suggests that the same U.S. Congress that can’t confirm a magistrate judge can vote to reauthorize the surviving bill and “in a couple of days, it won't be a big deal.”

In the afternoon session, Justice Scalia goes on a long, illuminating discursion about what he would do if forced to choose between his own life and that of his wife. Justice Breyer makes an impassioned plea for the infinite virtues of administrative law. And Solicitor General Donald Verrilli, offered 15 extra minutes by Chief Justice John Roberts to finish his argument defending the Medicaid expansion, snorts, “Lucky me.”

In closing the same argument, Verrilli offers what I can only describe as a final day’s prayer to the nine justices to preserve the health care bill because, as he puts it, with guaranteed health care, millions of Americans “will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.” Then, with a gentle imprecation that the court recognize that Congress did in fact pass a bill, he says, “Maybe they were right, maybe they weren't, but this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it.”

In one sense, and in light of the openly prayerful protests outside the court all week, it may not be a surprise that the three days of argument close with something like an entreaty to a higher power. In another sense, it reveals a lot about where the Obama administration now finds itself.

It’s not a good day for the Affordable Care Act. This morning’s argument requires the justices to start from the assumption that the court will strike down the individual mandate (the issue argued exhaustively yesterday) and asks them to pick over the carcass, to determine what, if anything, survives. There is a strong legal presumption that the court should save (or sever) the constitutional bits of a bill, even if it strikes down other parts. But as the day wears on and the argument winds down, this project of hacking and slicing seems more and more impossible—and it has depressed and terrified virtually everyone.

Justice Ruth Bader Ginsberg asks Paul Clement: “Why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.” Scalia jokingly suggests that it would violate the constitutional ban on cruel and unusual punishment to force the justices “to go through these 2,700 pages.” And Justice Anthony Kennedy suggests that while the legal presumption is that judicial modesty requires the court to avoid redrafting an entire piece of legislation, maybe the truly humble thing would be for the justices to strike the whole thing down. “When you say judicial restraint,” he tells Deputy Solicitor General Edwin 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. By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than striking the whole.”

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.