Justices divided on insurance mandate during oral arguments

On March 27, the U.S. Supreme Court returned for a second day of oral arguments on the Patient Protection and Affordable Care Act (PPACA), this time focusing on the law’s controversial health insurance mandate. After reading the 131 pages of transcripts of today’s two hour oral arguments, all I can safely say is that the Supreme Court justices appear quite divided on the subject of the mandate. If the justices do reach a decision on the merits of the case, it could well be a 5 to 4 decision.

(Caution: Comments made during oral arguments are not always good indicators of how a justice ultimately votes. Commentators may be reading too much into the comments made at oral argument. Or not.)

During the first half of the oral arguments, when U.S. Solicitor General Donald Verrilli presented the government’s case in favor of the mandate, he was peppered with questions from the so-called conservative bloc of the Court. Just minutes into the oral argument, Justice Anthony Kennedy, who is often seen as the swing vote, framed the central challenge to the law as “Can you create commerce in order to regulate it?” Chief Justice John Roberts then wondered whether the government could force Americans to buy cell phones and, similarly, Justice Samuel Alito questioned whether the government could force individuals to buy burial insurance.

However, later on during the oral arguments, the liberal justices took their turns at peppering Paul Clement, who represented the 26 states who are challenging the PPACA, and Michael Carvin, who represented private challengers, with questions and comments. Justice Ruth Bader Ginsburg, for instance, after suggesting a correlation between 1930s Social Security and the health reform legislation, suggested that it would be very strange to think that the government can take over subsidizing those who need health care but, if the government wants to “preserve private insurers, it can't do that.”

Kennedy the likely swing vote. Not surprisingly, as is often the case, the decision may well rest in the hands of Justice Anthony Kennedy, the justice who is often considered the swing vote. Kennedy asked tough questions of both sides. As noted above, Kennedy initially framed the central challenge to the law as “Can you create commerce in order to regulate it?” Kennedy also observed that the requirement to buy health coverage is telling an individual it must act, suggesting that this “changes the relationship of the government to the individual in a fundamental way.” Observing that requiring “an affirmative duty to act to go into commerce” is a step “beyond what our cases allow” the Congress to wield in regulating interstate commerce, Kennedy suggested that a requirement to buy insurance is “unprecedented” and, therefore, the government has a “heavy burden of justification.

After initially appearing to side with the challengers, however, Kennedy later asked tough questions of the challengers. For Kennedy, perhaps his most telling comment, made to attorney Carvin, was: “It is true that if most questions in life are matters of degree, in the insurance and health care world, both markets--stipulate two markets--the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” That is, the health insurance industry is unique.

Stay tuned. Day 3 of oral arguments on the health reform case are scheduled for March 28, with oral arguments on whether the health insurance reform law could survive if the mandate is struck down set for the morning. Finally, oral arguments on the PPACA’s broad expansion of Medicaid, which the challenging states claim is “coercive,” are scheduled to be held in the afternoon.

Then, it’s all in the hands of the nine Supreme Court Justices. Or, as many observers agree, it’s all most likely that the decision is in the hands of Justice Anthony Kennedy. At any rate, we should have a decision in about three months, by late June, the end of the Court’s current term.