The Obamacare oral arguments ended this afternoon on an issue that, as one court observer put it, is a tough case for both sides. As I noted this morning, the issue is whether the federal government can force states to expand Medicaid coverage to every non-elderly person with income of up to 138 percent of the poverty line. The government says Congress does this sort of thing all the time. The challengers call this coercion.

On this one, Justice Anthony Kennedy is not a problem for the challengers. He has been a hearty defender of states’ rights and the 10th Amendment. However, Chief Justice John Roberts and Justice Antonin Scalia are the skeptics. A few exchanges with Paul Clement, who represented the challengers, illustrate this:

SCALIA: As I recall your theory, it is that to determine whether something is coercive, you look to only one side, how much you’re threatened with losing or offered to receive. And the other side doesn’t matter.

I don’t think that’s realistic. I mean, I think, you know, the — the old Jack Benny thing, Your Money Or Your Life, and, you know, he says, “I’m thinking, I’m thinking.” It’s — it’s funny, because it’s no choice. You know? Your life? Again, it’s just money. It’s an easy choice. No coercion, right? I mean — right?

Now whereas, if — if the choice were your life or your wife’s, that’s a lot harder.

Now, is it — is it coercive in both situations?

CLEMENT: Well, yes. It is.


SCALIA: Really?

CLEMENT: I would say that.

SCALIA: It’s a tough choice. And — and -

KENNEDY: I thought you were going to say, “This is your money and your life.”


CLEMENT: And well — it is. But I mean — I might have missed something, but both of those seem to be coercion.


SCALIA: No, no, no. To say — to say you’re — when you say you’re coerced, it means you’ve been — you’ve been given an offer you can’t refuse. Okay? You can’t refuse your money or your life. But your life or your wife’s, I could refuse one.


That’s about as funny as the court ever gets. But then Roberts plowed on, making the case that the states who have gotten money with strings should know what they are getting into:

ROBERTS: Well, why isn’t that a consequence of how willing they have been since the New Deal to take the federal government’s money? And it seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done. They should not be surprised that the federal government, having . . . tied the strings, they shouldn’t be surprised if the Federal government isn’t going to start pulling them.

The government was roughed up as well in failing to appreciate that there may be a point at which “coercion” is an infringement on the 10th Amendment:

ROBERTS: I’m just trying to understand if you accept the fact or regarded as true that there is a coercion limit, or that once the Federal government — once you are taking Federal government money, the Federal government money — can take it back, and that doesn’t affect the voluntariness of your choice. Because it does seem like a serious problem. We are assuming under the Spending Clause the Federal government cannot do this. Under the Constitution it cannot do this. But if it gets the State to agree to it, well, then it can. And the concern is, if you can say: If you don’t agree with this, you lose all your money, whether that’s really saying the limitation in the Constitution is — is largely meaningless.

SOLICITOR GENERAL DONALD VERRILLI: Well, but I don’t think that this is a case that presents that question.

ROBERTS: No, no, I know. Know this. I don’t know if I will grant it to you or not. But let’s assume it’s not this case. Do you recognize any limitation on that concern?

VERRILLI: I think the Court has said in Steward Machine and Dole that this is something that needs to be considered in an appropriate case. And we acknowledge that. But I do think it’s so dependent on the circumstances that it’s very hard to say in the abstract with respect to a particular program that there is a -

SCALIA: You can’t imagine a case in which it is both germane and yet coercive, is what you are saying. There is no such case as far as you know.

VERRILLI: Well, I am not prepared to — to say right here that I can — that -

SCALIA: I wouldn’t think that is a surprise question, you know?

VERRILLI: Congress has authority to act and -

SCALIA: I can’t think of one. I’m not blaming you for not thinking of one.


Now, given the closeness of the question and the difficulty in line-drawing, the court could go either way. (I’m a bit amazed that Clement made a very tough issue into a relatively close call.) But in reality, I think it’s more likely that the court will never have to reach the issue, given where five justices seem to be on severability.

The closing of the argument, however, was remarkably telling. Understand this is the last chance for the attorneys to make their final impression, giving the justices something to grasp onto. What did the solicitor general do? He made a cheesy argument conveying total ignorance of the distinction between positive and negative rights. A sample:

VERRILLI: But if I may just say in conclusion that —I would like to take half a step back here, that this provision, the Medicaid expansion that we are talking about this afternoon, and the provisions we have talked about yesterday, we have been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance.

There is an important connection, a profound connection between that problem and liberty. And I do think it’s important that we not lose sight of that. That, in this population of Medicaid-eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.

And the same thing will be true for — for a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I can multiply example after example after example.

This is nonsense, of course. “Liberty” is not the “right to get free stuff.” And furthermore, this has very little to do with any issue in the case. It seems to have been a public-service announcement for the Obama administration, which is getting hammered in the press.

Clement picked up on this and dryly rebutted the solicitor general:

CLEMENT: Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power, which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.

Ouch. That exchange is indicative of the imbalance in legal mojo between the government and the challengers that we saw throughout the case. Maybe the left needs to stop making pleas for policy outcomes and go back to good old-fashioned legal analysis — centered on words, intent and all that sort of lawyer talk.