Now this, I wasn’t expecting. It was always conceivable that Kennedy could come down against the mandate, though hardly assured. But yesterday, it appeared that the four conservatives plus Kennedy reached a consensus that the justices were not competent to perform open-heart surgery on President Obama’s signature domestic achievement. “You really want us to go through these 2,700 pages?” asked Scalia. “And you really expect the Court to do that? Or do you expect us to give this function to our law clerks?”
That’s the problem with government health care, of course: It takes decisions out of the hands of patients and doctors, and puts them in the hands of congressional staffers and law clerks.
Kennedy expressed surprising skepticism that the Court was competent to make health policy. “I just don’t understand your position,” he told administration lawyer Edwin Kneeler. “Are you saying we have the expertise” to decide which provisions should stay in, and which should be thrown out, if the mandate is overturned? “It seems to me [that it] can be argued at least to be a more extreme exercise of judicial power [to keep the rest of the law intact] than striking the whole . . . I just don’t accept [your] premise.”
#more#Now, as we all know, judges like to play devil’s advocate at times, and you can’t conclude from these questions that Kennedy wants to throw out the law in its entirety. But both sides in the case understand that Kennedy’s concerns suggest where he’s leaning.
I thought that Paul Clement, who has been called the “LeBron James” of constitutional advocates, was outstanding this week: far better on this question of severability than he was in the Eleventh Circuit, where I’d said he had whiffed. It’s striking to look back on his performance then versus now, as well as that of his colleague Michael Carvin. Both of them clearly benefited from their experience arguing the case at the appellate level, in a way that President Obama’s lawyers could not.
I know that oral arguments at the Supreme Court don’t really matter, because most justices have already made up their minds. But my column today for Forbes highlights one telling exchange between Donald Verrilli, President Obama’s solicitor general, and Paul Clement, lead counsel for the challengers:
President Obama’s Solicitor General, Donald Verrilli, seemed to finally have found his stride. Without coughing, or stammering, or gulping down a glass of water, Verrilli delivered his concluding remarks to the Court. “In this population of Medicaid-eligible people who will receive health care that they cannot now afford,” said Verrilli, 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.”
Verrilli was, in a final effort to woo the Court’s conservatives, alluding to the preamble to the U.S. Constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Though judicial conservatives care much more about the Constitution’s actual text than its preamble, Verrilli doubtless thought he was appealing to the conservatives’ traditionalist sensibilities.
But to Verrilli’s opponent, Paul Clement, this pseudo-constitutional flourish was like a fastball down the middle. “I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty,” said Clement. “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.”
We’ll see what happens in June. For more dissection of what happened yesterday, read the transcript of our Critical Condition Day Three live blog. Randy Barnett said it best yesterday: “After these arguments, if the court strikes down the Affordable Care Act, no one in the country will be surprised.”
— Avik Roy is a senior fellow at the Manhattan Institute and the author of The Apothecary, the Forbes blog on health-care and entitlement reform. You can follow him on Twitter at @aviksaroy.