Court-Watchers Tell Us Health Care Law’s Integral Provision Appears in Trouble

March 27, 2012

by Jeremy Leaming

The spin is in on today’s health care law oral arguments – Paul Clement, the attorney for the state’s challenging the law’s minimum coverage provision, is awesome, and the provision is in trouble.

But, as noted yesterday by constitutional law professor Garrett Epps you’re on wobbly ground when predicting Supreme Court opinions based on oral argument theatrics. Sure, Clement is an outstanding high court litigator -- we’ll take it from SCOTUSblog founder Tom Goldstein who lavished praise on Clement at an oral argument preview last month, calling him one of the greatest attorneys of his generation.

What we can tell from today’s oral argument is that the Solicitor General Donald Verrilli, Jr., largely focused on Congress’s constitutional authority to regulate interstate commerce. The government has also argued that Congress’s constitutional power to tax and spend also supports the minimum coverage provision. Most of the justices, however, we're glued to the commerce clause question.

SCOTUSblog’s Lyle Denniston, a veteran Supreme Court correspondent, wrote of today’s oral argument that Justice Anthony Kennedy, “after first displaying a very deep skepticism,” provided toward the end of oral argument “the impression that he might yet be the mandate’s savior."

Additionally, the high court’s four moderate to left-of-center justices appear inclined to vote in favor of the ACA provision, which requires many to start carrying a minimum amount of health care insurance in 2014.

Clement described the minimum coverage provision as “an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.”

Justice Ruther Bader Ginsburg, pushed back wondering whether the health care law is similar to Social Security. In the 1930s, Ginsburg noted that Congress “saw a real problem of people needing to have old age and survivor’s insurance. And yes, they did it through a tax, but they said everybody has got to be in it because if we don’t have the healthy in it, there’s not going to be the money to pay for the ones who become old or disabled or widowed. So they required everyone to contribute.”

Justice Stephen Breyer jumped into the mix suggesting that Congress has indeed supported regulations that influence actions. “I say, hey, can’t Congress make people drive faster than 45 – 40 miles an hour on a road? Didn’t they make that man growing his own wheat go into the market and buy other wheat for his – for his cows?”

And during Clement’s time before the Court, he kept hitting on the unprecedented, saying the ACA is “trying to solve” a problem [an inefficient, terribly exclusive health care market] “in a way that nobody has ever tried to solve an economic problem before, which is saying, you know, it would be so much more efficient if you were just in this market ….”

At which point Justice Kennedy, stated, “But they are in the market in the sense that they are creating a risk that the market must account for.”

If five justices can’t come together to uphold the minimum coverage provision, the ACA’s goal of extending coverage to tens of millions currently uninsured will collapse. In a piece for Slate, Simon Lazarus, an ACS Issue Brief author on the constitutionality of the health care law, says a lot of other federal laws could also perish. If Clement’s states’ right argument wins the day, Lazarus writes, this could help “unravel existing federal authority and topple long-standing programs on a truly massive scale.”

For more coverage of oral argument in HHS v. Florida see the ACSblog online symposium.