Is the Health-Care Act Really on the Ropes?

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The justices asked some harsh questions this morning. But when it comes time to make a decision, most of the issues they raised won't matter.   

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The United States Supreme Court may (or may not) follow the election returns, as Finley Peter Dunne's immortal character Mr. Dooley pronounced over a hundred years ago. But whatever else the justices do, let's hope that just this one time they flatly ignore the latest polling numbers about the Patient Protection and Affordable Care Act. While just 26 percent of those surveyed in a CBS News/New York Times poll released Monday evening revealed that they support the federal health care law, no fewer than 48 percent of respondents confessed they are "confused" about what the law means. Stupid is as stupid does.

Naturally, the pundits and tribunes and lobbyists and zealots focused upon the first figure while practically ignoring the second. But what's the point of giving meaning to national poll figures where half of the respondents acknowledge they don't know what they are talking about? Garbage in, garbage out, right? Credit the law's opponents for a masterful job of obfuscating the details of the measure -- and blame the Obama Administration and the law's other supporters for failing miserably to adequately explain, on a basic level, what the law does and does not do.

Two years after it was passed, the level of ignorance surrounding the law is palpable. You can hear it in the voices of television and radio talk show hosts as they ask their silly questions. You can read it in the online comments posted from readers. That's not to say there aren't legitimate arguments for or against the Care Act -- it's just that those arguments have mostly been drowned out by the cacaphony of political and legal rhetoric. There has been so much spin here, and it has been spun for so long, that it has left millions of Americans simply dizzy.  

That's the sorry backdrop for today's landmark oral argument over the "individual mandate" contained in the Care Act -- the requirement that people under pain of penalty have health insurance by 2014. It is the most significant legal and political day at the Supreme Court since December 12, 2000, the day the justices announced their decision in Bush v. Gore. It's not just the future of the health care law that is at stake. There are political lives in the balance, too, not to mention the continuing credibility of the Court itself as an institution designed to stay above political storms like the one now blowing through Washington.

THE ARGUMENT

(Here is the Link to Tuesday's audio and transcript)

It's the world turned upside down. Today, the conservative justices, who are supported by those who often decry so-called "judicial activism," were the ones seeking out reasons to judicially countermand the majority will as expressed in the federal legislation. And it was the liberal justices, who are often pilloried for their so-called "judicial activism," who were carefully constructing their questions to suggest deference toward federal lawmakers -- the ones whose policy choices in the Care Act were designed to help even out the inequities (and some of the costs) of the nation's roiling health care system. Go figure.

This meant that the conservative justices (save for Clarence Thomas, who was as mute as ever) came out firing against U.S. Solicitor General Donald Verrilli. Justice Antonin Scalia cheekily asked, "Why not mandate health club membership?" If Congress can do this, the Reagan appointee added, what can't it do? The justice even raised the silly "broccoli mandate" issue -- the idea that the feds will soon be requiring people to eat their veggies. Justice Samuel Alito, a sure vote against the law, asked what the difference would be in regulating health care as opposed to regulating "burial services." Justice Alito said:  

I don't see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference?

There are big differences, Verrilli responded:

In this situation, one of the economic effects Congress is adding is that the many billions of dollars of uncompensated costs are transferred directly to other market participants. It's transferred directly to other market participants because health care providers charge higher rates in order to cover the costs of uncompensated care, and insurance companies reflect those higher rates in higher premiums, which Congress found translates to a thousand dollars per family in additional health care costs.

Meanwhile, Justice Anthony Kennedy, the swing vote, ominously asked the federal lawyer to "assume" that the Affordable Care Act is "unprecedented." He wondered if the law changes the relationship between individuals and the government in a "fundamental" way. "Can you create commerce to regulate it?" he asked. That can't be happy talk to supporters of the statute. If Justice Kennedy sees that Affordable Care Act as an order of magnitude different from what has come before, he's far less likely to consider it a valid successor to federal laws that have formed the basis of Commerce Clause jurisprudence for the past 75 years.

On the other hand, Justice Kennedy pressed Michael Carvin, an attorney representing opponents of the law, about the unequal market impact inherent in health care. Late in the argument, Justice Kennedy said:

And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both market -- stipuate two markets -- 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 is my concern in the case.

Chief Justice John Roberts? He was identified recently as another possible vote in favor of the Act. I'm not so sure. Exploring the limits of the scope of the law, his first question of the Solicitor General was this: "So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?" To which Verrilli tepidly replied:

No, Mr. Chief Justice. That's different.... I don't know think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be be able to control what they need when they enter.

The chief justice pressed on with his hypothetical but got the same answer from Verrilli. So it was left to Justice Ruth Bader Ginsburg, who is a sure vote in favor of the law, to express what the solicitor general was struggling to say about the reasons why Congress enacted the law in the first place. Emphasizing the concept of fundamental fairness, Justice Ginsburg said:

And tell me if I'm wrong about this, but I thought a major, major point of your argument was that the people who don't participate in this market are making it much more expensive for the people who do; that is, they will get, a good number of them will get services that they can't afford at the point where they need them and that the result is that everyone else's premiums get raised. So you're not -- it's not your -- your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.

It says something about the quality of the solicitor general's argument Tuesday that one of the justices was so much more eloquent than he in expressing the government's view. But remember that the justices don't decide cases by grading the quality of the lawyering before them. They decide cases by what the law says (or at least what they think it says). Verrilli got his hat handed to him by Paul Clement, one of his predecessors, and that impressed some court watchers. But it won't likely make a difference at all to the justices when it comes time for them to decide the law's fate. Substance does sometimes trump style.  

GOING FORWARD

The American public may be largely "confused" by the Care Act, but the justices aren't. When Justice Scalia asked, for example, if there are any limits to Congressional power under the Commerce Clause, he already knew that the answer to his question would be yes. Similarly, when Justice Kennedy asked the solicitor general to assume that the law is "unprecedented," he knew that there are plenty of federal statutes on the books, constitutionally permissible, that interject broad congressional policies and priorities (and, yes, even mandates) into the everyday lives of people.

The Court's conservatives (five) were more pointed with their questions for the solicitor general than the Court's liberals (four) were toward Clement. Some veteran court observers, including the venerable Thomas Goldstein over at Scotusblog, immediately interpreted that as a sign that the individual mandate is in trouble. Jeffrey Toobin, the author of one fine book about the Supreme Court who is just about finished with another, called the argument a "train wreck" for the administration. Maybe yes and maybe no. The justices don't have to love the law to save it. The Constitution doesn't require affection; it merely requires a reasonable measure of fealty.

I sometimes see the justices in these high profile cases as dogs on a leash (stick with me here for just a moment). They bark a lot during oral argument -- sometimes to publicly express a sense of their own perspective or frustration, sometimes to push the attorneys to define the contours of an argument, sometimes because they want to make a point to one of their colleagues on the bench. But at all times, they are supposed to be tethered by the leash -- restrained by the language of the law, by their own precedent, and by the cases their predecessors have handed down to them.

Sometimes the leash holds. Sometimes it breaks. Sometimes the barking is just for show. Sometimes the barking is a warning that change is about to come. The challenge for court observers, especially in cases like this, is to determine which is which. The initial wisdom from the commetariat coming out of Tuesday's argument, after all the barking by Court conservatives, is that the insurance mandate is in trouble. I'm not so sure. The transcript reads better for the feds than the argument sounded. And sometimes dogs bark because they know they can't or won't be unleashed. Sometimes, even, they bark just because they can. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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