Wednesday, March 28, 2012

ObamaCare on Trial at the Supreme Court

I do not need to rehash all the commentary going on these past few days.
Today is the 3rd and last day for Oral arguments at the Supreme Court.

Hopefully, Anthony Kennedy will be sensible and side with the ObamaCare mandate as unconstitutional.

The liberal justices are incredibly biased and there is almost no chance that any of those 4 would vote against the law. It is evident in their comments and questions, which are incredibly weak.

Here is a transcript of today's live blog:


The Supreme Court on Wednesday is entering the last of its three days of arguments over the Obama health-care law, with justices set to weigh what happens to the rest of the overhaul if the court strikes down the requirement that individuals carry health insurance.

We have reporters at the court, who are sending in updates on the action. The morning session started at 10 a.m. ET, and the afternoon session starts at 1 p.m.

  • Meanwhile, in the markets, a muted reaction among insurance stocks. UnitedHealth Group is off 0.2% at last glance and Aetna is down 0.5%. To be sure, these declines are actually less than that of the broader market. Pfizer is down 0.7% and Merck is off 0.3%. Expect more turbulence ahead. More analysis in MarketBeat.

  • Mr. Clement said: “You need look no further than the title of the statute” to know it all must fall. Without the individual mandate, the “principal tool,” the Patient Protection and Affordable Care Act can accomplish neither.

    He recalled the experience with the 1976 campaign case, Buckley v. Valeo, which struck down limits on political expenditures but upheld restrictions on political contributions. That ruling has proven problematic, creating a “halfway house” of horrors for Congress. He urged the court to simply pave over the entire structure of the Affordable Care Act, so Congress could build something new, or nothing at all.

  • After Mr. Farr finished, Paul Clement returned for a four-minute rebuttal.

  • Justice Scalia said that after the court ripped the “heart” from the bill, the individual mandate, he preferred to see the entire creation die, so that Congress were free to start from scratch regarding healthcare policy, if it so wished.

  • Justice Scalia would have none of that. He said that there wouldn’t be 60 Senate votes, presumably Republicans, to break a filibuster and repeal the entire act, so the other provisions would remain on the books. Mr. Farr replied that it was not appropriate for the court to make legislative choices reserved to Congress.

  • Chief Justice Roberts asked what would happen next if only the mandate fell. Would insurance companies, for example, be expected to litigate over remaining provisions they found onerous? No, said Mr. Farr. Insurance companies or others who found the remaining provisions unpalatable could go to Congress to seek new legislation that would alter the system. States that have adopted guaranteed issue or community rating laws have modified those policies in light of experience, he said, adding that one, Massachusetts, responded by adopting a minimum coverage requirement.

  • Mr. Farr said that beyond the individual mandate, the health law included at least half a dozen other provisions intended to keep insurance affordable, such as authorizing annual enrollment periods (so people couldn’t wait until they were ill to get insurance) and large subsidies for those being priced out.

  • Justices Ginsburg and Kagan replied that Congress itself had said the three provisions-- the individual mandate, community rating and guaranteed issue -- were linked. And without the individual mandate, rates would skyrocket as unhealthy people acquired coverage at the same price as the healthy, who would then drop coverage until they became sick.

  • More on Mr. Farr: He is a former clerk to then-Justice William Rehnquist and a partner at a boutique litigation firm in Washington who has often argued before the Supreme Court.

  • Mr. Farr began his 30-minute argument saying that while it would be best to leave the entire law intact, if the court found the individual mandate unconstitutional, it would be a mistake to also kill community rating and guaranteed issue, as the government urges. That, he said, would exemplify “the best driving out the good.”

    Note: "Community rating" means that insurance companies charge everyone in a community or group the same set of prices, and they don’t base the price of a policy on an individual’s health status. "Guaranteed issue" means that insurers have to offer a policy to everyone who applies, regardless of health status.

  • Earlier, the 11th U.S. Circuit Court of Appeals struck down the Obama health plan's individual mandate, but ruled the rest of the Affordable Care Act could stand. Since neither the government nor the challengers agreed, the Supreme Court appointed Mr. Farr to argue that position.

  • Mr. Kneedler has finished, and now on to lawyer H. Bartow Farr, who is arguing that all other provisions of the law should remain in place even if the insurance mandate is found unconstitutional.

  • Justice Kennedy, again exploring the competency theme, says Mr. Kneedler suggests the court has the expertise to invalidate some parts of the law, but not the expertise to judge whether other parts should remain in place. The justice says he finds that "odd."

  • Justice Scalia suggests there has never been another high court case where the justices have struck down the “heart” of a law, but left the rest of it in place. Mr. Kneedler says it would be an “extraordinary” move for the court to strike down a huge number of the law’s provisions that have nothing to do with the insurance mandate.

  • Justice Kennedy questions whether the court has the competence to decide in minute detail whether certain provisions of the law should be thrown out or remain in place if the insurance mandate falls.

  • Chief Justice Roberts, shifting gears, asks what should happen to the rest of the health-care law if the court strikes down the law's expansion of Medicaid. The Medicaid issue will be considered by the court this afternoon. Mr. Kneedler says that if the court strikes down the Medicaid expansion, other provisions should remain in place.

  • Chief Justice Roberts suggests that Mr. Kneedler, the government lawyer, has made effectively made the case that if the insurance mandate falls, the guarantee that insurers accept all customers must go, too. But, the chief says, that doesn’t tell the court what to do with all the many other provisions of the law.

  • Justice Kagan suggests the court has no business trying to guess whether Congress would or wouldn’t have voted for other provisions in the law, absent the insurance mandate. To engage in that exercise would be a "revolution" in the court's jurisprudence, she says. Photo: Elena Kagan

  • Justice Scalia says it's "totally unrealistic" to expect the Supreme Court to go through 2,700 pages of the health-care law and figure out which provisions should remain in place and which must be thrown out because they're interconnected with the insurance mandate.

  • Justice Alito echoes those concerns, saying other provisions in the law, in addition to the guaranteed-coverage requirement, could lead to higher costs for insurers.

  • Several justices express concern about doing harm to insurance companies if the mandate falls but the rest of the law is left in place. Justice Kennedy worries about imposing a "risk" on insurance companies "that Congress never intended."

  • Justice Antonin Scalia has shown he sympathizes with the idea that the case law on severability is complicated--that is, how much of a law to uphold if part is struck dow . When Mr. Clement observed that courts' decisions on the issue over the years span a variety of interpretations, the judge replied, "they sure do." Photo: Getty Images

  • Justice Scalia says it’s “unrealistic” to leave it to Congress to figure out what to do with the rest of the law if the insurance mandate is struck down. He suggests it would be better to invalidate the whole thing and let Congress start from scratch. Mr. Kneedler, in response, said such a move would violate principles of judicial restraint.

  • Chief Justice Roberts questions whether there will be whole new lines of litigation on the remaining provisions of the health-care law if the court leaves the rest of the law in place without the insurance mandate.

  • Justice Ginsburg says that if the insurance mandate falls, the legislative branch should be the one to decide what should happen to the rest of the law. "Congress can take care of it," she says.

  • Mr. Kneedler, opening his 30-minute presentation to the court, said the justices should reject the challengers' "sweeping" proposition that the whole law must be invalidated. He said most of the law’s provisions don’t even apply to the parties who challenged the insurance mandate.

  • Mr. Kneedler is arguing the government’s position. The bearded lawyer is a lifer in the solicitor general’s office, having served since 1979. He has argued more than 100 cases before the high court and was by the side of Solicitor General Donald Verrilli Tuesday morning as Mr. Verrilli struggled his way through an hour of harsh questioning. Mr. Kneedler has another tough job Wednesday morning because he’s arguing about a scenario the government is trying to avoid, in which the Supreme Court strikes down the insurance mandate. Photo: Associated Press

  • OK, Mr. Clement is done. Next up: Justice Department lawyer Edwin Kneedler.

  • Justice Breyer has been especially aggressive in challenging Mr. Clement to say what he proposes the justices actually do to resolve the fate of the law, suggesting that his options include appointing a special master or going back to the district courts. He's also listed several of the provisions of the law, prompting laughter when he referred to expanded health services for Native Americans as "the Indian thing."

    "Those [other provisions] have nothing to do with the [mandate] stuff... OK?" he said. "They can stand on their own." Photo: Getty Images

  • Justice Kagan has indicated that she believes the case law to date supports the idea that the court should apply a light-touch to what it does, and that if the choice is between leaving half-a-loaf and no loaf, half-a-loaf wins.

  • Justice Kennedy has asked broader questions about the precise test that he thinks should be applied in this case to determine what Congress intended. He's been met with a flurry of responses fromJustice Sotomayor, Justice Elena Kagan, and Justice Stephen Breyer. Photo: Getty Images

  • Chief Justice Roberts and Justice Anthony Kennedy are considered to be the swing votes in the health-law case, so their questions will be especially key here.

  • Chief Justice John Roberts has asked several questions of Mr. Clement that further the case for striking down the whole law, and echo other remarks from Justices Alito and Scalia.

    He has suggested that the whole of the health-law should be considered to be linked to the individual mandate because its myriad of other provisions, such as black-lung payments, were actually included as sweeteners to pass the main bill. Without them, Congress "would not have been able to cobble together the votes to get it approved," he said. Photo: Getty Images

  • Justice Ruth Bader Ginsburg has sought to argue that the most legally conservative position is to uphold the law. If the justices have to choose between "a wrecking operation and a salvage job, a more conservative approach would be a salvage job," she said.

  • Conservative justices Antonin Scalia and Samuel Alito have seemed to endorse Mr. Clement's case. Justice Scalia has been responding frequently to Justice Sotomayor's remarks, pointing to what he calls "legislative inertia" as a reason not to leave the decision of how much of the law to keep to Congress. Justice Alito, meanwhile, has argued that if the judges are considering what Congress intended when it passed the legislation, they should probably consider that the legislation wouldn't have passed without its cornerstone provision, the individual mandate.

  • Mr. Clement answered most of the questions he got in the first half-hour by saying that without the mandate, the health law would be a "hollowed-out shell."

  • Justice Sonia Sotomayor was first to interrupt the challengers' lawyer Paul Clement, who is arguing that the whole law should be invalidated, shortly after he began making his remarks. "Why shouldn't we let Congress" decide what to do, she asked him. "What's wrong with leaving it in the hands of people" who should be taking this decision, "not us?" she continued.

  • The Supreme Court's liberal justices went head to head with conservative judges on the bench Wednesday morning in an effort to protect the health law, arguing strongly in favor of keeping most of the overhaul legislation even if the individual requirement to purchase insurance or pay a fee is ruled unconstitutional.

  • We will have our first updates from Wednesday's arguments shortly.

  • Wednesday, Mr. Clement is arguing that if the mandate is unconstitutional, the entire law must be nullified. U.S. District Judge Roger Vinson in Pensacola, Fla., took that position last year, writing that the law's parts were too intricately entangled to keep some and not others. However, the appellate court in Atlanta reversed Judge Vinson on that point.

  • Paul Clement is back for an encore this morning after his widely praised performance attacking the Obama health law in Tuesday's arguments. Mr. Clement stayed on message Tuesday, hammering home his contention that Congress has never required people to purchase a product as it did when it established the health insurance mandate. Photo: Bloomberg

  • As in prior days, the Supreme Court will be releasing audio and transcripts of the arguments very quickly, likely about an hour after they wrap up. If you haven't already, check out WSJ.com's annotated transcript of Tuesday arguments, with highlights and audio.

  • Rep. Michele Bachmann plans to make another appearance outside the Supreme Court after the morning session on Wednesday, accompanied by Reps. Louie Gohmert and Steve King, urging the court to strike down the Obama health law.

  • The court has now finished with delivering opinions this morning. It delivered three in total, none on high-profile cases. (The cases are FAA v. Cooper, Vartelas v. Holder andSetser v. U.S.)

    On to the main event.

  • It's a typical case where Justice Kennedy's vote with the conservatives was decisive. Had he gone the other way, it would have been a 4-4 tie and an appellate court’s ruling in favor of the pilot would have been upheld.

  • Did we mention that Justice Anthony Kennedy is a frequent swing vote on the court? It happened again Wednesday morning, as he sided with conservatives in a 5-3 ruling in a case about damage rules in certain privacy-violation cases. (Justice Elena Kagan was recused in the case.) In a ruling by Justice Samuel Alito, the court adopted a more limited definition of damages, siding with theFederal Aviation Administration against a former pilot who thought the government had violated his privacy.

    Here is the text of the opinion (PDF).

  • We'll have some updates on this morning's rulings shortly, before the main health care arguments begin.

  • Among the audience for this morning's arguments: Sen. Kelly Ayotte(R., N.H.) Plenty of senators from both parties have snagged tickets for the health law arguments. But we think Ms. Ayotte may be the only one who's also a named party in one of the key cases that the justices will be basing their decision on: Ayotte v Planned Parenthood of 2006, which established new tests for judges trying to work out how much of a law to strike down if part of it is invalidated. Photo: AFP/Getty Images

  • In addition to hearing the health-care arguments, the Supreme Court is set to release at least one opinion this morning. Those opinions come right at the top of the hour at 10:00, meaning the arguments probably won’t start until around 10:15 or so.

  • Neither party to the case supports that approach, so the Supreme Court appointed Washington lawyer H. Bartow Farr to argue in its favor.

  • An Atlanta-based federal appeals court took a different position last year -- different from the Obama administration and its opponents -- when it ruled the insurance mandate unconstitutional. That court, the 11th U.S. Circuit Court of Appeals, said all other provisions of the law should remain in force.

  • Today, we'll be reporting the details of the 90-minute morning session, which starts at 10 a.m., then taking a short intermission, then will turn to the afternoon session, which starts at 1p.m.

    The afternoon session will examine the health-care law's expansion of Medicaid, a joint federal-state insurance program for the poor.

  • The reason? The administration and health insurers say it would be impossible for insurers to accept all comers unless they are assured of gaining millions of new customers through the mandate to carry coverage.

  • The Obama administration argues that most of the law's provisions aren't connected to the mandate and should remain in place regardless. But it says that if the mandate goes, certain provisions intertwined with it must be struck down as well. Those provisions require health insurers to accept all prospective customers, even those who are already ill.

  • There's a smaller crowd outside the court Wednesday morning than there has been on previous days for the health overhaul case, even though the morning's arguments will be devoted to whether to keep most ofPresident Barack Obama's signature law in place if parts of it are struck down. Supporters of the law who are here are reflecting that in their chant of the day: "Ho ho, hey hey, ObamaCare is here to stay." (Photo: Getty Images)

  • It's a key question, particularly considering what happened a day earlier. At Tuesday's arguments, the court's conservative justices sharply challenged the insurance mandate, raising the prospect of a 5-4 decision finding it unconstitutional. If you haven't already, read our day 2 live blog and article.

  • Wednesday morning the court is hearing 90 minutes of argument on what should happen if the insurance mandate--the requirement that individuals carry health insurance--is nullified. The law's challengers say the entire law should then be declared void.

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