Richard Mondale, left, yells at a Obama healthcare supporter Will Oneil… (Mark Wilson/Getty Images )
After a three-day marathon of oral arguments, the nine members of the Supreme Court met in conference Friday to cast preliminary votes on the constitutionality of the Patient Protection and Affordable Care Act, a.k.a. "Obamacare." Some commentators regard the outcome as a foregone conclusion based on the skeptical questions posed to the government's lawyers by the two Republican-appointed justices considered most likely to uphold the law — Chief JusticeJohn G. Roberts Jr.and JusticeAnthony M. Kennedy— and on the supposedly lackluster advocacy of Solicitor General Donald B. Verrilli Jr. At the risk of being accused of wishful thinking, we believe reports of the death of the law may be greatly exaggerated.
Granted, Kennedy and Roberts treated with excessive respect the contention that the law's insurance requirement represents an apocalyptic departure from established constitutional principles. But, on reflection, those justices may still conclude that it would be overreaching to thwart Congress in an area — the regulation of commerce — in which the court has generally deferred to the legislative branch since the 1930s. Whether or not it was outmatched forensically, the administration in its argument offered ample reason for the justices to uphold the act.
That there will be such a substantive ruling seems likely. On Monday, a majority of the court seemed unimpressed by the argument that it should refrain from addressing the merits of the case because of an 1867 law that bars lawsuits against the imposition of a tax until the levy is collected. The supposed "tax" in this case is a penalty imposed by the law on individuals who refuse to purchase insurance.
Having apparently disposed of that question, on Tuesday the justices confronted the constitutionality of the individual mandate. Conservative justices, sometimes seeming to channel right-wing talk-show hosts, pressed Verrilli about whether the mandate created rather than regulated commerce. Couldn't a Congress that required the purchase of health insurance also force Americans to buy health club memberships, burial plans and, of course, broccoli?
In her testimony at her Senate confirmation hearings, Justice Elena Kagan pointed to a practical answer to the broccoli hypothetical: A law requiring the consumption of vegetables would be "a dumb law" that Congress would probably never pass. But there is also a legal answer, and Verrilli, with an assist from liberal justices, provided it: Even individuals who lack insurance participate in the commerce of healthcare, for example by receiving emergency room treatment. Requiring people to carry insurance is merely regulating how they pay for a product they will be or already are consuming.
On Wednesday, the court considered two additional issues: whether, if it struck down the individual mandate, some or all of the remaining provisions should also be voided, and whether the law unconstitutionally coerces the states into participating in an expansion of Medicaid by offering additional funds. The latter issue should be easy to resolve in the law's favor. In the past the court has upheld the right of Congress to attach conditions — for example, a 21-year-old drinking age — to the receipt of federal funds.
More complicated is the question of whether the court should "sever" parts of the law it finds unconstitutional and allow the rest to remain. The justices were presented with three choices if they were to disallow the mandate: strike down the entire 2,700-page statute (the position of the law's opponents), strike down only the individual mandate (as a court-appointed lawyer argued) or strike down two provisions that would be subsidized by the mandate — requirements that insurance companies write policies and determine rates regardless of an applicant's medical history or condition (the administration's position). Our view is that, if the individual mandate fell, the court should leave everything else intact, including the protection for people with preexisting conditions. If Congress wanted to repeal or restructure the remaining provisions, it would be free to do so.
But the court shouldn't nullify the mandate or indeed any part of the law. Whatever his other infelicities, Verrilli in his closing argument on Wednesday ably identified the issue in this case: "Congress struggled with the issue of how to deal with this profound problem of 40 million people without healthcare for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with [what] lots of experts thought was the best complex of options to handle this problem. 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." It was a powerful argument for judicial restraint, one the court should heed.