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Despite justices' skeptical questions, decision could go either way, say legal experts

This article first appeared in the St. Louis Beacon, March 27, 2012 - President Barack Obama's health-care law ran into a barrage of skeptical questions on Tuesday from conservative justices on the U.S. Supreme Court. They challenged Solicitor General Donald Verrilli to define an outer limit for congressional power if Congress can force people to enter commerce to buy health insurance.

Verrilli, who was coughing and stammering even before the rapid-fire questions, labored for an hour to explain why a Congress that can require health insurance can't force people to buy broccoli, cell phones, burial insurance or health club memberships. Verrilli said that Congress could create a comprehensive regulatory scheme to the health-care market and could force people to buy insurance who would otherwise "undercut" the regulatory scheme by staying out of the market.

There was no indication that Justices Antonin Scalia, Samuel Alito or Clarence Thomas were persuaded. The question was whether either Justice Anthony M. Kennedy or Chief Justice John Roberts were persuaded to join the four more liberal justices who were unanimously supportive of the law in their questioning.

Jeffrey Toobin, the media legal expert, called the argument a "train wreck" for the Obama administration. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong." Toobin said that Verrilli had given a weak performance and was out argued by former Solicitor Paul Clement, who challenged the law for 26 states.

'A fool's errand'

Legal experts in St. Louis said it was foolish to conclude from the argument that the law would be struck down. Michael Wolff, former chief justice of the Missouri Supreme Court, commented sarcastically, "It is indeed fortunate for the highly paid pundits that apparently no one keeps a scorecard on them. To infer preferences based upon justices' questions is guesswork founded on speculation. Did any of them say what Kennedy had for breakfast — it could be the deciding factor?

Bruce La Pierre, a Washington University law professor, agreed. "I echo what I think is Judge Wolff’s point," wrote La Pierre in an email. "Determining how justices (or judges) will vote based on their questions at oral argument is a fool’s errand. Pundits’ speculation is (1) just that, speculation, (2) entertainment for the masses, (3) spin from those who have long since chosen sides, or (4) all of the above.

"I have won appeals that questions would have suggested that I would lose; I have lost appeals that questions would have suggested that I would win," continued La Pierre. "More importantly, although widely ignored ... it is not just the bottom line decision that matters; the court’s reasoning matters. I doubt that you will find any accurate predictions of the lines of analysis and explication of the justices who are so widely assumed to be 'in play.'"

Alan Howard, a constitutional law expert at Saint Louis University law school, also wrote, "It is foolish to place a big bet that court will uphold the individual mandate and equally foolish to place a big bet that court will strike down the individual mandate. The court can go either way."

Just how historic a case?

Howard went on to predict that the court's decision will not be as monumental as many pundits predict.  He wrote, "Some things about the court's decision that I am very confident about and about which I would not hesitate in betting the farm are the following: (a) Which ever way the court rules, it will not overrule any prior commerce clause decision ... (b) if the court strikes down the individual mandate, it will do by writing a narrow opinion that distinguishes the mandate from anything Congress did in any previous federal law that the court upheld."

Joel Goldstein, Howard's colleague at Saint Louis University, was more inclined to predict a historic decision. "This is potentially the most significant federalism decision since the New Deal if the court uses its power of judicial review to strike down significant parts of the health-care legislation.  The only rival was Heart of Atlanta, which unanimously upheld Title II of the Civil Rights Act of 1964.

"The stakes for Roberts in this case are different and greater than for any of the others. This decision promises to be the most significant of his first seven years on the court," added Goldstein. "His historical legacy will be shaped in part on his ability to lead the court, to find accommodations on a court."

Survival or fall of the mandate

David Roland, director of litigation at the libertarian Freedom Center of Missouri, wrote that the challengers of the law seemed to have the better of the argument in emphasizing that the Constitution provides for "limited" government.  But he added that the final vote still seems up in the air.

"While it is always risky to read too much into the questions that justices ask at oral argument, after listening to today's arguments, I do feel quite safe in saying that there are at least four votes (Ruth Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor) to uphold the health-insurance mandate and three (Scalia, Thomas and Alito) to strike it down. The survival of the mandate seems to depend on Roberts and Kennedy, who must decide if the mandate's proponents successfully explained how the mandate would be consistent with a clear, principled limit to Congress' authority.

"To say that Solicitor General Verrilli struggled when Alito asked him to describe such a limit would be a major understatement, but both Roberts and Kennedy continued to express their openness to the possibility that the health- care issue was so unique that it might justify Congress' decision to force citizens to engage in commerce."

Kennedy asked Verrilli early in the argument to explain how the government could force people into commerce. But near the end of the two hours of argument he asked a question that gave supporters of the law some hope. He said, "It is true that 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 providing medical care in ways not true in other markets." 

That was justice-speak for saying that he might have found a principle that would allow him to distinguish the health-care market from the broccoli-buying market and uphold the law.

Both sides agreed that Congress has the power to adopt a single-payer health plan. It also could force people to buy health insurance at the time they show up for care. But Verrilli pointed out that such a system won't solve the problem because no insurance plan can work that way.

Government and commerce

The liberal justices spent much of the time trying to help Verrilli answer the questions posed by the conservatives spearheaded by Scalia.

Breyer said he could not understand the opponents' claim that Congress cannot create commerce. The Bank of the United States, upheld by the Chief Justice John Marshall in the 19th century, had created commerce, Breyer said. "The court said Congress could create the Bank of the United States, which did not previously exist (and) whose job was to create commerce, which did not previously exist."

Breyer also said that the health-care law seemed to have a greater effect on commerce than some laws the court had upheld previously.  In decisions since the New Deal, the court upheld Congress' power to regulate homegrown wheat on a farm and homegrown marijuana plants in a basement -- neither of which were intended for interstate commerce. In comparison, Congress' attempt to regulate the health-care market seemed much more relevant to interstate commerce, he said.

Kennedy, often the swing justice between liberals and conservatives, made it clear that he is holding the government to a high level of persuasion because, as he put it, the health-care law "changes the relationship between the government and the individual in a fundamental way" by forcing the individual into the market. But Kennedy also seemed to hold open the possibility that he could support the authority to force people to purchase a product as part of a comprehensive regulatory scheme when the failure of people to purchase the product would have a substantial effect on interstate commerce.

On Wednesday, the court returns for the last of the three days of argument. It will address whether the rest of the law can stand if the individual mandate is thrown out and whether Congress had power to require a big expansion of Medicaid as part of the law.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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