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If parts of health-care law fall, can others stand?

This article first appeared in the St. Louis Beacon, March 28, 2012 - When the third and final day of U.S. Supreme Court arguments on the federal health care law had ended on Wednesday, at least one thing seemed certain: All four justices appointed by Democratic presidents would vote to uphold the law, and all five justices appointed by Republican presidents had serious questions about both the law's individual mandate to buy health insurance and its expansion of Medicaid.

That is the kind of partisan divide that Chief Justice John G. Roberts Jr. has indicated he wants to avoid because it undermines the court's authority by making it appear as though it is just another political branch of government. But by the end of the argument, the chief justice was one of the most animated voices suggesting that Congress may have exceeded its vast spending powers and threatened federalism by its big expansion of Medicaid.

The extraordinary three days of argument raised the possibility that the court could reject both the individual mandate and the Medicaid expansion and in the process limit the outer reach of two of Congress' most robust powers -- the power to regulate interstate commerce and the power to spend money for the general welfare.

It's been 76 years since the court has invalidated a law for violating Congress' spending power. But the two conservative justices closest to the middle of the court -- Roberts and Justice Anthony M. Kennedy -- seemed more outspoken in raising questions about the Medicaid expansion than they had been Tuesday in questioning the individual mandate.

Still, neither the chief justice nor Kennedy took a definitive position on the law over the three days. If one or both join the liberals, the law still could be upheld.

One thing that might save the law is the complexity of the issue that the court addressed Wednesday morning: If parts of the law are unconstitutional, can other parts stand? The difficulties the court had with the issue only underlined the liberals' view that the court was encroaching on the role of Congress in refashioning what parts of the law might survive.

Justice Antonin Scalia agreed with Paul Clement, the lawyer for 26 states challenging the law, that the entire law should go if the individual mandate is struck down because the mandate was the "heart" of the law and all that would be left would be a "hollow shell."

Clement likened the situation to the 40-year-old decision of Buckley vs. Valeo in which the Supreme Court ruled that limits on political candidates' expenditures were unconstitutional, but that limits on contributions were constitutional. Many people think that led to unworkable campaign finance laws, and Clement warned the court not to repeat the mistake.

But Justice Ruth Bader Ginsburg said many provisions of the law did not depend on the individual mandate and should remain standing. Ginsburg called for a "salvage job" rather than a "wrecking operation." She added that such an approach, validating as much of Congress' work as possible, would be the "conservative approach" showing the most judicial restraint

But Kennedy, the key swing vote, disagreed, suggesting that the court would actually be exercising judicial activism, not restraint, if it allowed part of the law to remain in effect but completely changed what Congress wanted to do to the health-insurance industry.

The court bridled at the thought of having to go through the thousands of pages of the law to figure out which portions relied on the individual mandate and which ones did not. Whatever happened to the Eighth Amendment, Scalia joked, referring to the Constitution's prohibition of cruel and unusual punishment.

The Obama administration conceded that the prohibition against insurance companies denying coverage to those with pre-existing conditions would have to fall if the individual mandate falls; insurance companies counted on the additional policy holders in good health to pay for the costs of covering those in poor health.

Justice Elena Kagan suggested that Congress would rather have "half a loaf" rather than "no loaf." The insurance exchanges set up by the law are not dependent on the individual mandate, she said.

But Clement said that most of the key provisions of the law were connected to one another. "What makes this different is that the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this Act. And then if you look at how they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid, if you follow that through what you end up with at the end of that process is just sort of a hollow shell. ...You can't possibly think that Congress would have passed that hollow shell without the heart of the act."

Justice Samuel Alito asked Clement what his "fallback" position was, suggesting that Alito might not be able to count five votes to throw out the whole law. Clement seemed willing to concede that the court could uphold provisions on the periphery of the law, such as those affecting black lung victims or Indians on reservations.

Medicaid expansion

The issue on the Medicaid expansion involves Congress' power to attach conditions on federal grants. The power is almost unfettered. The court has said that Congress can't use the power to force states to take actions interfering with their sovereignty, but it has not struck down a law for violating this coercion principle.

Clement's argument is that the Medicaid program has become so big and states depend upon it so much that they are effectively coerced into giving in to federal rules. The new federal health law makes the problem even worse because it greatly expands the amount of money involved and because states could theoretically lose all of their Medicaid money if they do not go along with federal rules. Clement pointed out that Medicaid spending has jumped from $21 billion in 1984 to $250 billion today -- and that's before the expansion ordered by the new law.

Kagan immediately took after Clement noting that the federal government was paying for 90 percent of the new expansion. What if the government paid for 100 percent? she asked. Clement said he would have the same objection because states could not say no without risking all of their Medicaid money.

"Why is a big gift from the federal government a matter of coercion?" asked Kagan. "It's just a boatload of federal money for you to take and spend on poor people's health care. It doesn't sound coercive to me."

Other liberal justices asked similar questions, demanding to know how this Medicaid expansion was different from many previous ones.

During the questioning of Clement, Roberts added his own skeptical question, suggesting that the states had only themselves to blame for their dependence.

"Why isn't that a consequence of how willing they have been since the New Deal to take the federal government's money?" he asked. "And it seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done, they should not be surprised that the federal government, having... tied the strings, they shouldn't be surprised if the federal government isn't going to start pulling them."

Clement responded, that the dependence of the states was not a reason to say, "so let's call this whole federalism thing off."

But when Solicitor General Donald Verrilli rose to defend the Medicaid expansion, the chief justice was even more animated in challenging his position. He picked up on a question by Scalia comparing the choice facing the states to "the old Jack Benny thing: Your money or your life."

Kennedy also repeatedly challenged Verrilli, raising concerns that the Medicaid expansion confused democratic accountability because citizens did not know whether to blame state or federal officials when they were upset by the their care.

Just before the end of the argument, Ginsburg asked Clement what his bottom line was. She suggested Medicaid expansions that were voluntary and offered carrots rather than sticks might alleviate his concerns. Clement said he would be satisfied with a decision recognizing the coercion doctrine and adopting the voluntary remedy suggested by Ginsburg.

Just before the end of the argument, Verrilli, whose performance Tuesday was heavily criticized, stepped back from the dry legal arguments and the discussions of the economic market to make an appeal to emotion -- an appeal that seemed particularly aimed at Kennedy and his concerns about individual liberty.

Verrilli said, "In this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, 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.

"In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the court is considering these issues that that be kept in mind. The -- the Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem."

Clement, who outargued Verrilli throughout the three days, had a pointed rejoinder. "Let me just finish by saying I certainly appreciate what the solicitor general says, that when you support a policy, you think that the policy spreads the blessings of liberty. 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."

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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