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.
But as the Supreme Court decides the fate of “Obamacare,” the latest polling from the Kaiser Family Foundation suggests that the law’s supporters are still losing the information battle.
The law’s popular provisions are still far less well-known than the unpopular individual mandate.
Source: Kaiser Family Foundation.
As we wrote last week, public opinion of the health-care law has barely budged since 2009. The language people use to describe their opposition — which focuses on cost and government control — hasn’t changed either.
The law’s popular provisions are still far less well-known than the unpopular individual mandate. C News poll showing 52 percent of Americans still oppose the law, 70 percent said that what they have heard about it is mostly negative.
Supporters argue that the message war can still be won.
"It's not surprising, because the full law isn't all implemented until 2014, so we know its going to take years until everyone is benefiting and understanding it like Medicare, Medicaid and Social Security,” said Eddie Vale, spokesman for the pro-reform group Protect Your Care.
Of course, if the Supreme Court strikes down the individual mandate but leaves the rest of the law intact, as seems possible, the most-visible and least-popular part of the reform will go away. But without the mandate, some of the law’s more popular provisions won’t work. So what would happen in the court of public opinion is anyone’s guess.
Solicitor General Donald Verrilli, who argued for the Obama administration during the hearing, had a difficult few days. Wonkblog’s Ezra Klein shows some sympathy for the difficult task Verrilli faces.
Solicitor General Donald Verrilli has not had a good week. But it’s not entirely his fault. Reid Cherlin, who served as the Obama administration’s spokesman on health care, is sympathetic to Solicitor General Don Verrilli. The Affordable Care Act, he says, is really, really hard to explain.
I think this is a bit of a myth. For one thing, I don’t think the health-care law in general, or the individual mandate in particular, is hard to defend. Here’s Mitt Romney making the case for his version of it.
And I certainly don’t think it’s less easy to defend than single payer. If single payer were such an easy sell, it wouldn’t have been beaten back every time it’s been tried on either the state or national level. While the policy is simple in theory, and appealing when framed in certain ways, it gets a bit tougher to defend when the majority of Americans who are happy with their current insurance begin asking why you’re taking what they have away from them.
But for all that, I think Cherlin’s difficulties as a spokesman shed real light on Verrilli’s performance on Tuesday. Cherlin and Verrilli faced the same problem: It’s very hard to defend anything when your opponents choose the questions. Cherlin, as spokesman, didn’t get to choose the questions he was asked. And Verrilli, as solicitor general, had even less autonomy: Not only didn’t he choose the questions, but he couldn’t do the spokesman’s trick of dodging them.
Let’s stipulate that Verrilli didn’t deliver a command performance yesterday. Indeed, he was, at times, unbearably awkward, taking long sips from his glass of water and coughing nervously. Nevertheless, his biggest problem was that, right out of the gate, Justice Anthony Kennedy -- the man who Verrilli was there to convince -- basically asked when the Affordable Care Act stopped beating its wife.
Kennedy’s first question was, “Can you create commerce in order to regulate it?” which, while not exactly friendly, wasn’t so bad. But his second question was different:
Well, once you’ve assumed all that, you’ve pretty much assumed away the case. Verrilli could have responded with more clarity, passion, and force. That failure is on him. But he who frames the question tends to win the argument. And what was really important in Tuesday’s arguments was that Kennedy bought into the frame proposed by opponents of the bill.
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