Obamacare, Day 2: Regulation or Tyranny?

Any Supreme Court sophisticate worth her briefs will tell you that trying to predict where the justices are going based on oral arguments can lead to trouble. Sure, some members of the court will telegraph their views. Others take the opportunity to play law professor, bat the attorneys around the way a cat toys with a cornered mouse, or just show off.

So with that out of the way, let’s ignore the wisdom of the sages and speculate on what Tuesday morning’s two hours of back-and-forth on health reform portends.

Under the heading of No Big Surprise: The four Democrat-appointed members of the court—Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—showed no inclination via their questions and comments to strike down the Affordable Care Act based on the argument that Congress exceeded its constitutional authority “to regulate Commerce … among the several States.” These more liberal justices are not necessarily trying to do the president a favor; they simply believe that Congress possesses sweeping power under the Commerce Clause of the U.S. Constitution to shape and constrain the economy. According to this view, the requirement that all Americans buy health insurance or pay a penalty constitutes a legitimate regulation of an industry that accounts for 17 percent of the U.S. economy.

Twenty-six states disagree. They’ve challenged the 2010 law, saying that by forcing individuals to purchase insurance, Congress has gone a big step too far in bossing people around. From this perspective, it doesn’t matter that the act’s goal is to make sure that 32 million uncovered citizens get health coverage, so that everyone else does not, in effect, have to pick up their emergency room fees. The challengers see this as a matter of principle, a bright line Congress may not cross. And some of the more conservative members of the high court certainly seemed tempted this morning to tell Congress and President Barack Obama to back off, based on a report from Bloomberg News.

“The federal government is not supposed to be a government that has all powers,” Justice Antonin Scalia said early in the argument. “It’s supposed to be a government of limited powers.”

Justice Anthony Kennedy added that the insurance mandate tells people that they “must act.” That, Kennedy suggested, “changes the relationship of the government to the individual in a fundamental way.”

Sotomayor countered that the government can require people to buy insurance ahead of time “because you can’t buy it at the moment you need it.”

Wait a second, said Chief Justice John Roberts. “Can the government require you to buy a cell phone” because someone may need to call to report a fire or mugging?

The mandate forces young people, who may need little care, to subsidize medical treatment “that will be received by somebody else,” said Justice Samuel Alito.

Um, yeah, responded Ginsburg. “That’s how insurance works.” Later she added, “People who don’t participate in this market are making it more expensive for those who do.”

Are the five conservatives set to knock down the law? Who knows? Generations of Supreme Court precedent, going back to the New Deal era, would appear to give Congress authority to do almost anything it wants when it comes to overseeing the economy. Justice Clarence Thomas has indicated on a number of occasions that he thinks that precedent is wrong and he wouldn’t mind tossing it. He’s almost certain to vote against Obamacare. His comrades on the right, despite the skepticism they are expressing, may hesitate to undermine so much settled law. (I’ve gone so far as to predict an 8-1 vote upholding the Affordable Care Act, but as everyone who knows me will confirm, I’m usually wrong.)

The most intriguing new prognostication I’ve seen this morning (it arrived before the arguments finished) came from a poll of former Supreme Court clerks and lawyers who have argued before the justices. Sam Stein of the Huffington Post reports that that only 35 percent of these presumably well-informed respondents predicted that the individual mandate will fall. (Stein qualifies: “The findings are far from scientific. Only 66 people participated in the survey—43 former clerks and 23 other attorneys.”)

On Wednesday, the last of three days of argument, the justices will consider what should happen to the rest of the health-reform law if they strike down the insurance requirement. A decision is expected by June or July. As my father-in-law, a very accomplished attorney who has himself argued successfully before the Supreme Court, would say: Only time will tell.