Three Branches in Historic Clash Over Health Care

Posted March 28, 2012 at 6:36pm

For three days this week, Washington, D.C., was riveted as the three branches of government faced off dramatically in a packed room on First Street Northeast, and when it was all over, President Barack Obama’s health care law was hanging by a thread.

Dozens of Members of Congress attended at least one of the three days of oral arguments before the Supreme Court, including the principal authors of the law and its chief opponents. Attorney General Eric Holder, Health and Human Services Secretary Kathleen Sebelius and top White House aide Valerie Jarrett were among those representing the White House.

They sat quietly, without even a cellphone, momentarily powerless amid hundreds of others in the crowded chamber and just feet in front of the nine people who would decide the fate of a law with almost unprecedented legal and political stakes.

It was a marked contrast to the circus-like atmosphere just outside the court, with nonstop protests, for and against, and rolling press conferences conveniently staged on the Capitol lawn with the court building in the background. Politicians and activists mugged for cameras, a small brass band passed by at one point, and even presidential candidate Rick Santorum rolled up in his motorcade to take advantage of the spotlight.

For opponents of the law, no less than freedom itself is on the line. If Congress has the power to compel people to buy health insurance, what could it not do?

For supporters, the health of more than 40 million without insurance is at stake, as well as the power of Congress to take actions to deal with major national problems.

Indeed, the questions raised by this week’s oral arguments moved beyond health care and into the limits of the government.

Would the court begin to roll back more than 70 years of expanded government powers dating to the New Deal — powers that led to Social Security, Medicare, Medicaid and environmental laws? Would it toss aside merely the heart of the law — a mandate to buy health insurance — or invalidate the whole thing? And would it push back against the federal government’s ability to use the power of the purse to spur states to take actions that they otherwise would not support?

Energy and Commerce Chairman Fred Upton (R-Mich.), after attending his first court argument Wednesday, hesitated to make a guess. “It’s a lot like filling out your brackets,” he joked, referring to the ongoing March Madness college basketball tournament.

But Upton noted that the court on Wednesday was repeatedly asking what Congress’ intent was — even as Members were sitting in the audience.

“I smiled a lot,” he said, adding that he hoped the court strikes the whole thing rather than handing Congress the messy job of cleaning up what some justices referred to as “half a loaf.”

“I think we need to start over,” Upton said.

While the outcome remained uncertain, consistently tough questions from the five more conservative justices made Republicans more confident than ever that the law will be history by late June, when the court is expected to deliver its ruling. Shaky performances from the government’s top lawyers, including Solicitor General Donald Verrilli, buoyed the GOP.

And the courtroom crackled whenever likely swing vote Justice Anthony Kennedy spoke. Nobody is taking his vote for granted, but he set a high bar for the government to make its case, and his skeptical questions appeared to unnerve the government’s lawyers. Kennedy expressed deep doubts about the constitutionality of the individual mandate Tuesday, and on Wednesday, he posited that it could be a more extreme use of judicial power to invalidate the individual mandate but leave the rest of the law intact.

Democrats still hope that one or two conservative justices might ultimately be persuaded to uphold most or all of the law, and they warned the court’s credibility as an impartial observer was also on the line.

In the meantime, Congress repeatedly ended up as a punching bag for the most conservative members of the court, while the liberal justices pushed to defer to Congress.

“Don’t you think it’s unrealistic to say, ‘Leave it to Congress’?” Justice Antonin Scalia asked with his trademark sarcasm Wednesday, as the justices wrestled with the question of the law’s severability.

The liberal justices, however, suggested that Congress would have preferred they keep as much of the law as practicable.

Justice Ruth Bader Ginsburg asked why the court should engage in a “wrecking operation” instead of a “salvage job.”

“Half a loaf is better than no loaf,” Justice Elena Kagan suggested.

But “sometimes half a loaf is worse,” Paul Clement countered, arguing for the 26 states suing to overturn the law. Without the mandate, you are left with a “hollow shell.”

If the rest of the law is so uncontroversial, Congress can pass a new law “in a couple of days, and it won’t be a big deal,” Clement suggested to laughter.

Scalia at one point said that if it were up to him, the law would fall if the mandate is struck.

“My approach would say, if you take the heart out of the statute, the statute’s gone,” he said.

Scalia said asking Congress to fix the remainder of the bill struck him as less democratic than striking the whole bill, citing the need for 60 votes in the Senate to overturn the rest of the law. That, he said, was a “gross distortion” of the democratic process.

Scalia ripped into the “Cornhusker kickback” included in the law as just one example of a questionable side provision that makes it hard to determine whether Congress would have passed the larger law absent the mandate. The much-
maligned provision, added in part to secure the vote of Sen. Ben Nelson (D-Neb.), became a symbol of the tense wrangling that accompanied passage of the Senate bill in 2009.

Sen. Kelly Ayotte (R-N.H.), who attended today’s session, cheered Scalia’s attacks.

“Justice Scalia had it right,” she said, when he argued the whole bill should go.

“I don’t think it’s the court’s role to see which of these provisions would have passed on its own,” she said.

Sen. Mike Lee (R-Utah), who has also been sitting in on the proceedings, pointed to the arguments about whether the law’s expansion of Medicaid is constitutional, calling the Obama administration’s argument a “stunning example of federal overreach.”

Democrats, meanwhile, began warning that the court’s credibility is also at stake.

To overturn the law, “the court would have to stretch. It would have to abandon and completely overrule a lot of modern precedent, which would do grave damage to this court in credibility and power,” Sen. Richard Blumenthal (D-Conn.) said. “The court commands no army, it has no money, it depends for its power on its credibility and its reputation. Ultimately, people obey it because it has that credibility, and the court risks grave damage if it strikes down a statute of this magnitude and importance.”

He said that, as someone who has argued cases before the court, at least three justices haven’t made up their mind: “I think all of the predictions are worth what you’re paying for them — they mean nothing at this point.”

And Verrilli, whose performance had been largely panned on Tuesday, closed Wednesday with an impassioned defense of the law. He pointed to the newfound liberty millions will have because of the care and security they will have under the law: “The same thing will be true for — for a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I could multiply example after example after example.”