The overall impression is that the Patient Protection and Affordable Care Act activates the ideological differences that define the current Supreme Court, and the court’s decision, expected to come just before its session ends in June, will be close.
During their questioning on the third and final day of the court’s historic review of Obama’s landmark domestic initiative, the justices indicated some acceptance of the government’s argument that at least two key insurance provisions would have to be scrapped if the individual mandate were found unconstitutional. But it was far from clear whether the court would opt to strike the entire law.
Paul Clement, a former solicitor general representing the 26 states that are challenging the law, argued that if the individual mandate is declared unconstitutional, the rest of the health-care law must be rejected as well. Congress would never have adopted the law’s other major structural reforms to the health-care system without the individual mandate, he told the justices.
But the justices questioned that logic.
Justice Antonin Scalia brought up one of the last-minute deal sweeteners that drafters of the law threw in to win the crucial vote of Sen. Ben Nelson (D.Neb.) — a concession dubbed “the Cornhusker Kickback.” If the court were to declare the kickback unconstitutional due to a constitutional prescription against “venality,” Scalia posited, to titters in the courtroom, would the justices really have to strike the entire law on the grounds that the law could not have made it through Congress without it?
“That can’t be right,” he said.
The questions came a day after Scalia and other conservative justices expressed deep skepticism about the constitutionality of the individual mandate as they grilled the government’s top lawyer, Solicitor General Donald B. Verrilli Jr., on the provision. On Wednesday, the third and final day of oral arguments in a case that has drawn demonstrators from both sides of the issue, it was the challengers’ lawyer who was put on the defensive .
Whether or not his signature achievement survives the court’s review, Fix blogger Rachel Weiner writes “Obamacare” suffers from a public relations problem:
Ever since debate over the health-care law began, Democrats have said that Americans would like the Affordable Care Act better the more they know about it.