September 2, 2014

Obamacare before the Supreme Court: “The Emperor Has No Clothes!”

Courtroom illustration shows Deputy Solicitor General Edwin Kneedler speaking to Justice Antonin Scalia and Chief Justice John Roberts of the U.S. Supreme Court in Washington

In a case of “the Emperor has no clothes,” the justices played the part of the skeptic to the Obama Administration’s protestations of Obamacare’s constitutionality.  With the oral arguments on constitutionality of the Affordable Care Act over, let’s take a look back at the reactions to the arguments:

First, the crux of the argument? That the government cannot regulate “inactivity,” an angle that has been pushed by Georgetown professor Randy Barnett:

On Monday, as the court began three days of arguments, questioning by the nine justices suggested they were ready to review the law now rather than wait until it has fully kicked in. That lays the groundwork for arguments for the challenge championed by Professor Barnett: that Congress’s power to set rules for commerce does not extend to regulating “inactivity,” like choosing not to be insured.

Apparently, the Supreme Court is buying the argument, much to the Obama Administration’s dismay.

In “Obama’s Supreme Court Disaster,” Adam Serwer says that the government’s lawyer Donald Verilli should be glad that the Supreme Court doesn’t allow cameras in the court room; his performance was that bad.

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy.

Investors Business Daily feels bad for Verilli, but doesn’t blame him. The Affordable Care Act just isn’t constitutional, the editorials says.

We almost felt sorry for Donald Verrilli, the solicitor general who had to defend the constitutionally indefensible. Over three days of intense interrogation by nine Supreme Court justices, Verrilli failed to muster a single coherent, reasonable argument in support of the ObamaCare law’s constitutionality.

Instead, his shambling, unfocused talking points left the government case in disarray — underscoring what a poorly conceived, badly designed law this was in the first place, and why it must be overturned.

Some think that the disasterous arguments have put the Obama Administration on the defensive over the heart of Obamacare, the individual mandate on Americans to buy healthcare insurance.

That’s a purely political argument to a constitutional question. [White House Press deputy press secretary] Earnest  offered no defense along the lines of the precedential history of Congress and the commerce clause. It is the reach and scope of commerce-clause authority that is at the heart of the high court’s scrutiny of the health care law.

A week ago, ACA supporters were looking forward to a triumph. Now, they’re counting their losses. What happened?

Perhaps the most telling moment was during a question from Justice Kennedy. Ilya Shapiro describes it:

By this point the government’s head appellate advocate was on his heels, dodging increasingly skeptical queries, until Justice Kennedy delivered what in poker would be seen as the key “tell”:

JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Although you can’t hear it on the audio recording, the audience gasped.

Just like that, the headlines started changing.

The law isn’t dead, yet though, say supporters.

As Mark Twain might say, reports of Obamacare’s demise are greatly exaggerated. While the conservative justices expressed considerable reservations about the law’s scope, Justice Kennedy, the key swing vote, also noted, near the very end of the argument, that the unique context of the healthcare market may be sufficient to validate the “individual mandate.” The biggest challenge the government has faced in defending the law has been the articulation of a limiting principle, and by argument’s end it seemed that Justice Kennedy might have heard one that he could sign on to. If he does vote to uphold the law, it’s possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.

On the other hand, Dr. Milton Wolf in the Washington Times is more than sanguine about the demise of Obamacare. He’s predicting complete overturn, and, if not, the downfall of America.

The die is cast: Obamacare will not survive. This is not a prediction of how the Supreme Court will rule on President Obama’s health care takeover, mind you. It’s the harsh reality that if Obamacare does not die a judicial or political death – or better yet, both – it will die an economic death, and if it does, it will take America down with it.

Obamacare’s costs are exploding in the land where budgets already have burst. The $900 billion bargain-basement 10-year cost estimate that Mr. Obama promised for his overhaul recently ballooned to $1.8 trillion. Of course, these are still just estimates, and considering that the government underestimatedMedicare’s cost by a factor of 10, who really knows how massive the final price tag will be?

Welcome to the United States of Greece, where our $15.6 trillion national debt has surpassed the size of our total economy.

Which begs the question: if not Obamacare, what? Healthcare reform is clearly necessary. In the Chicago Tribune,

“One way or another, Congress will have to revisit it in toto,” Justice Antonin Scalia said of the health law.

One way or another.

That should be a clarion call in Washington. The prospect that the court will strike down all or part of the law known as Obamacare hands political leaders of both parties a formidable challenge — and a vast opportunity: a second chance to get health care reform right.

On that point, James Pethokoukis asks “What will Republicans do if the Supreme Court kills healthcare” reform and suggests that perhaps combining Rep. Paul Ryan’s plan (block grants to states for Medicare0 with future president Mitt Romney’s plan (known as the “Hubbard Plan“) might be workable.

The Hubbard Plan has five elements: 1) allow all Americans to deduct from income taxes all their healthcare expenditures—premiums, employee contributions, out-of-pocket costs, etc.; 2) deregulate insurance markets to foster nationwide, portable health insurance; c) making health information more available; d) control anti-competitive behavior such as hospital mergers; e) malpractice reform.

In the meantime, stay tuned. The law hasn’t been overturned, yet, and still may stand. While you’re waiting, jog on over to the Sweaty Federalist for his snark on some of the arguments being made to uphold the law.

[AEI] [Glenn Hubbard] [Mother Jones] [Washington Times] [Investors Business Daily] [National Journal] [The Nation] [Chicago Tribune] [New York Times]