Health Care: What Did The Court Decide?

with. In that conference, the Chief Justice assigns the writing of the majority opinion if he sides with the majority; otherwise the most senior justice voting with the majority makes that assignment. Dissenters can write independently or as a group. The law clerks go to work, drafts are exchanged, and any justice may change his or her mind up to the moment when the decision is handed down. But one has to wonder about the rush to that preliminary vote and whether that puts undue pressure on a justice not to change his or her opinion, which could turn the majority into the dissent in a close case and cause a do over of all drafting.

To discern the fate of the health care act, look not to what Verrilli and Clement and Carvin had to say in arguing before the Court; rather, look to the questions asked by the justices. And, if you assume that the four liberal and four conservative justices will vote as expected, then you may want to look only to what Justice Anthony Kennedy asked:

“Can you create commerce in order to regulate it?” That was the first clue, a suggestion that the law had things backward. Verrilli would only later say, “Congress is regulating existing commerce, economic activity that is already going on, people's participation in the health care market, and is regulating to deal with existing effects of existing commerce.”

A bit later Kennedy said, “Could you help…me with this? … Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act, to go into commerce. If that is so, do you not have a heavy burden of justification… to show authorization under the Constitution?”

The proceedings continued until at one point Kennedy asked Verrilli, “Can you identify for us some limits on the Commerce Clause?” Mr. Verrilli could not. His response wandered afield. He came unprepared to answer the key concern that, if the Court allowed the government to require everyone to buy health insurance, what can be said about health insurance that makes it different from all other forms of commerce? Wouldn’t that lead to, as Chief Justice Roberts said, “pretty much all bets are off”, and a government that could conceivably force us to buy or do whatever it chose, to engage in activity where there was none before, to “make people buy broccoli”, as Justice Antonin Scalia would trivialize the crucially serious health care matter.

Kennedy also showed an inclination to go beyond the judicial branch, not limiting himself to review of the law before him, by asking why didn’t Congress make a different law? “If the Congress has alternate means, let's assume it can use the tax power to raise revenue and to just have a national health service, single payer ... It can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct [taxing] power”.

Further on Kennedy says, “But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act…that changes the relationship of the Federal Government to the individual in the very fundamental way.”

When Paul Clement took the floor to argue for the 26 states suing to halt the Act, Justice Kennedy reversed field slightly when he said about the uninsured, “But they are in the market in the sense that they are creating a risk that the market must account for”. This reading says that the uninsured are already in the health care market by virtue of their effect on the cost transferred to others who pay for insurance, which suggests that the mandate does not force the “activity” of entering that market, a key word in the suit.

And finally, in the session on the individual mandate, Justice Kennedy seemed to continue this new outlook with, “And the government tells us… the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, …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”.

If that sounds like the justice is finding something of limiting principle, the next day’s session did not encourage those who want the Obama Administration’s health case measure to go forward. The subject was whether, if the mandate for everyone to buy insurance were to be deemed unconstitutional, would that cripple the entire Act such that the Court should overturn the Act in its entirety?

Justice Sotomayor lobbied repeatedly for judicial restraint, saying that it is Congress’s preserve to decide what to do with what remains of the Act. “If we strike down one provision, we are not taking that power away from Congress. Congress could look at it without the mandatory coverage provision and say, this model doesn't work; let's start from the beginning. Or it could choose to fix what it has… Unless Congress tells us directly, it's not severable, we shouldn't sever. We should let them fix their problems”.

Yet Kennedy had a different view: “When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if … one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended”.

Hard to follow, but his gist is that the Court would be doing a greater service to Congress by overturning the entire law rather than hand it a broken statute, its key funding element removed, and leaving the legislature to do a repair job on damaged goods.

So you have just explored the mind of the swing justice in the health care law debate. How do you think he voted?

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