The packed hearing room of the Supreme Court was a who’s who of lawyers and political leaders this morning, all of whom witnessed what was an undeniably bad day for the Obama Administration and its defense of the President’s health care law. Paul Clement and Michael Carvin, attorneys representing those challenging Obamacare, battled Solicitor General Donald Verrelli, who was defending the law, and urged the Supreme Court to find the individual mandate in ObamaCare unconstitutional. Present in the courtroom were about twelve state attorneys general, including those from Utah, North Dakota, Florida, Texas, and Virginia, as well Eric Holder, Kathleen Sibelius and U.S. Senators such as Mitch McConnell, John Cornyn, and John Kerry.
The hostile questioning for Clement and Carvin from the liberal justices, particularly Steven Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, left little doubt as to their collective view that requiring individuals to buy health insurance was within the Commerce Power of Congress – an argument that liberals advanced in defense of the individual mandate’s constitutionality. And at times when Verrelli was faltering in answering tough questions from other more skeptical justices like Antonin Scalia, Justices Ginsburg and Breyer would step in to help him, posing arguments in favor of the government as if they were questions.
Verrelli’s chief argument was that the health care market is unique and that everyone will have to participate in it at some point, so the government is justified in requiring people to buy insurance for it now. But there’s a difference between regulating commerce that’s already happening and forcing individual Americans to enter into commerce – in this case, the health care market – so that Congress can better regulate it. Justices Breyer and Sotomayor seemingly could not accept a meaningful difference between the two.
If Congress were able to regulate things that people will eventually have to do, then there would be virtually no limits to its power. When Verilli was asked a question on that subject, he had a difficult time answering. Justice Alito pointed out that everyone eventually dies and faces burial expenses – and under the government’s rationale, couldn’t it compel all Americans to buy burial insurance so that others are not stuck with the costs?
There were several clear indications that the government may have a high hill to climb in defending its position. Justice Kennedy, who is often seen as the swing vote, indicated through his questions that the government may have a “heavy burden” to show that what it is doing is constitutional since it is compelling people to enter into commerce. Although Justice Kennedy did express some concern about the challengers’ arguments, his most telling concern was with the scope of the government’s position. At two different times, Justice Kennedy stated that the government’s theory would “fundamentally change the relationship between the individual and the state.” That may be very telling indeed. Justice Scalia raised familiar questions about the ability of the government to compel you to eat broccoli to stay healthy, or to join an exercise club for the same reason since unhealthy people impose such great costs on our economic system, putting to rest the concern that he was bound by his position in an earlier case to support the mandate.
The Solicitor General’s chief problem throughout the arguments was that he was unable to give a clear, simple, and easily understood answer to this question: If Congress has the power to compel the purchase of an insurance policy from a private company, what limiting factor is there on congressional power under the Commerce Clause? He was asked that same question more than once by different justices and never came up with a reasonable or principled constitutional distinction. Justice Scalia admitted that he came up with distinctions, but denied they were based on constitutional principles.
The funniest answer in the two hours (although there was no laughter in the courtroom) was when Verrelli claimed that Congress had passed the ObamaCare law to deal with a serious problem “after long study and careful deliberation.” Anyone who knows the history of the frenzied and swift nature of the passage of ObamaCare, when almost none of the members of Congress knew what was in the 2,700 page bill, realizes what an absurd statement that was.