But there was deep skepticism among the conservatives. At times, Verrilli seemed shaken by the intensity of the questions. When Chief Justice John G. Roberts Jr. decided Wednesday that more time was needed to consider the constitutionality of expanding Medicaid, he told Verrilli that he would receive an extra 15 minutes.
“Lucky me,” Verrilli replied, evoking laughter in the crowded courtroom.
Supreme Court Justices and H. Bartow Farr discuss what will happen if the court removes the "heart" of the Affordable Care Act in a heated discussion at March 28th's Supreme Court hearings.
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WEDNESDAY | Is the law's expansion of Medicaid to cover a greater share of the poor constitutional? View story »
Justice Ruth Bader Ginsburg had wondered earlier in the day whether her colleagues were on a “wrecking operation” or a “salvage job” as they were deciding what to do about the rest of the law should the individual mandate be declared unconstitutional.
The court’s divisions were on vivid display Wednesday during a discussion of the law’s Medicaid expansion, which gives states more federal money if they agree to enroll more of the poor. States can refuse, but only if they pull out of the program altogether.
The states challenging the legislation say that is not an option. The Medicaid program has grown so large that it is impossible to forgo federal funding and still provide medical care to the poor, they say.
The question before the Supreme Court is whether the law violates limits the court has set in the past: that the federal government cannot impose conditions “so coercive as to pass the point at which pressure turns into compulsion.”
Liberal justices clearly thought the states’ argument lacked merit.
“Why is a big gift by the federal government a matter of coercion?” asked Justice Elena Kagan, saying the government is giving the states a “boatload of money.”
Justice Stephen G. Breyer said that under Clement’s theory, any expansion of Medicaid that comes with conditions would be unconstitutional. Ginsburg pointed out that “we have never had, in the history of this country or the court, any federal program struck down because it was so good that it becomes coercive to be in it.”
But Justice Samuel A. Alito Jr. said that in passing the health-care legislation, Congress operated on the assumption that the Medicaid program had become so large and essential that no state could turn down the government’s offer. “When that’s the case, how can that not be coercion?” he asked Verilli.
Kennedy added that states had “no real choice.”
Earlier, the court considered whether the entire law should be scrapped should the individual mandate be declared unconstitutional. Even though there are many elements in the legislation that have no connection to the mandate, including funding for ongoing federal programs, Clement said the entire law should fall.
“Let’s just give Congress a clean slate,” he said.
The government argued that only two provisions of the law — a prohibition against insurers discriminating against people with preexisting conditions and a limitation on how insurers set rates — depend on the mandate. The rest of the law should stand, it said.
Again, the justices seemed to split along ideological lines.
It was in a discussion about what Congress would prefer if the mandate fell — all of the law minus the mandate, most of the law or none of the law — that the court began to discuss the political dimensions of its decision and the partisan climate in which it operates.
Clement was greeted with laughter when he said that if the entire law were struck down, it should take Congress only a few days to pass the parts on which members overwhelmingly agreed.
Later in the day, as Clement presented the arguments of the states he represented against the Medicaid provision, Ginsburg reminded him that other states had filed a brief with the court saying they want the federal expansion.
Scalia asked: “Mr. Clement, I didn’t take the time to figure this out, but maybe you did. Is there any chance at all that 26 states opposing it have Republican governors and all of the states supporting it have Democratic governors? Is that possible?”
“There’s a correlation, Justice Scalia,” Clement replied.
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