Wednesday, March 28, 2012

Day Two: Tough Talk From The Supremes

By the accounts of the insiders and legal junkies, it was a tough day yesterday at the Supreme Court for the defenders of the individual mandate portion of the healthcare law.

In an intense interrogation of the government’s lawyer, Solicitor General Donald B. Verrilli Jr., the justices posed repeated and largely unanswered questions about the limits of federal power. At the end of two hours, the court seemed split on the same question that has divided political leaders and the country: whether the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty.

The answer is likely to come from Justice Anthony M. Kennedy or perhaps Chief Justice John G. Roberts Jr.

Both men fully joined in the rough 60 minutes of questioning for Verrilli. But they indicated that the case might be a closer call for them than for their colleagues.

If either were to save the health-care law — championed by Obama, passed by a Democratic-controlled Congress in 2010 and increasingly unpopular in public opinion polls — it seemingly would require a judgment that there is something unique about the health-care market that allows such regulation and that some line could be drawn to limit the government’s claim of federal power.

Tuesday’s arguments were the most dramatic so far of the Supreme Court’s three days of hearings on the Patient Protection and Affordable Care Act, and the session was perhaps the most remarkable one since the court decided the 2000 presidential election with its ruling in Bush v. Gore.

Tough questions don’t always mean the court will rule against the side they’re questioning with hammers and tongs, and a lot of people have lost a lot of money betting on an outcome based on that. So, like everything in this case, we’ll have to wait and see. For everyone who thinks the mandate will stand by a 6-3 or 5-4 vote, you can find someone who thinks it will be ruled unconstitutional. In terms of politics, it’s a game, too; losing the battle on the mandate could actually be good for the Democrats, according to Ross Douthat.

This kind of overthinking happens when there’s a lot of heat but very little light on the subject; everyone knows what the arguments are, but no one knows how the Court will rule, and the networks have to justify all their time on the air and the money spent on consultants. That’s one reason why there’s so much guessing going on; it keeps people tuned in, and that means they can sell more commercial time.

Today the Court turns to the expansion of Medicare and the burden on the states. Riveting.