When the Questions Reveal the Answer – Why Obama Should Be Worried

            I really didn’t need to have taught appellate advocacy at McGeorge School of Law (for almost ten years now) to be able to grasp the probable result in the Supreme Court’s consideration of the Affordable Care Act.  I knew even before the oral arguments last week that the Court was likely to declare the law unconstitutional and had so predicted as long ago as last year.

            Here is what I wrote when pondering the question in a column last July:

            So what will the nine-member Supreme Court do?  The answer probably hinges on Associate Justice Anthony Kennedy (the other eight, four on each side of the issue, being reasonably predictable).  And, if past decisions (e.g., Bush v. Gore and Citizens United) are a guide, his vote is more likely to fall with the Scalia-Thomas-Roberts-Alito bloc than with the Court’s moderates.

            Kennedy has always been a conservative jurist, just as he was a conservative law professor when he taught Constitutional Law at McGeorge back in the 1970s.  His course in those days was heavy on the Commerce Clause and the expanded powers the New Deal decisions had given Congress to control everyday activities.  While he also taught the importance of stare decisis (“let the decision stand,” the judicial recognition of the value of certainty in the law), he was not at all shy about decrying the judicial activism that found things in the Constitution he did not think were there.

            Of course, now he is part of a judicially active court that is interpreting statutory and constitutional issues the other way (to the right, instead of to the left).  And so, with Bush v. Gore, he agreed to a per curium (by the Court) opinion that interpreted the Equal Protection Clause of the Fourteenth Amendment as it had never been interpreted by a majority of the justices on the Court before.  And, in Citizens United, he gave to corporations the power to control the financing of elections by grossly extending earlier Court decisions that had deemed corporations to be people for purposes of commercial transactions.

            So, in my mind, the Affordable Care Act was on life support as soon as the Court (oddly, at the Obama administration’s request) agreed to hear the appeals from conflicting lower court decisions on the law’s constitutionality.

            But if past decisions by a Supreme Court Justice are tea leaves in terms of predicting how that Justice might decide a current case, the way that Justice handles the oral argument on that case is much more akin to forecasting tomorrow’s weather.  The former can be pure guesswork, while the latter is much closer to absolute reliability. 

            And if the oral arguments last week revealed anything, they revealed that a heavy storm is in the forecast for President Obama’s signature legislative achievement of his first term.

            Oral arguments often consist of the Court’s Justices asking questions more to persuade their colleagues on a point than to get answers from the attorneys advocating a particular position.  And, too, Supreme Court Justices will often use their questions to establish the basis for the decision they will ultimately make on the case they are hearing.

            Those questions often take the form of hypotheticals, by which the Justices will seek to show how a particular position, if adopted, would lead to presumably undesirable results.  The key hypotheticals in last week’s arguments concerned broccoli and burial insurance. 

            Those seemingly disparate purchase items were used hypothetically to try to get the administration’s advocate, Solicitor General Donald Verrilli, Jr., to admit that a mandate, such as the Affordable Care Act contains, violates the Constitution because it would make a mockery of the power granted to Congress under the Commerce Clause.

            “Everybody has to buy food sooner or later,” Justice Antonin Scalia posited during Tuesday’s hearing (responding to Verrilli’s argument that the health insurance mandate is justified because at some point everyone needs health care).  “Therefore, you can make people buy broccoli.”

            The statement was really a question, which Justice Samuel Alito emphasized by then asking Verrilli to answer it “as succinctly as you possibly can.”

            Verrilli’s answer probably didn’t satisfy either of the Justices. 

            “The class to which that requirement applies either is or virtually is most certain to be in that market when the timing of one’s entry into that market and what you will need when you enter that market is uncertain …,” he started, never really getting to the broccoli hypo.  His attempt to answer the burial insurance hypo was equally unsuccessful.

            The correct answer to both hypos (the one Verrilli should have been fully prepared to give – at least at McGeorge we would have so prepared him) is that, yes, Congress can mandate that everyone buy broccoli or burial insurance if it is stupid enough to enact such a law.  The check on such irrationality, he then should have added, is the ballot box, where the people have the ability to decide whether they like or do not like what their elected representatives (and presidents) have done.

            But Verrilli, for whatever reason, was flummoxed by the hypos, and by the end of the day, just about everyone but the most loyal Obama and Verrilli supporters was admitting that the Solicitor General had made a mess of the administration’s position.

            It probably doesn’t matter that he did.  This is an activist Court that will rule the law unconstitutional just as it would have ruled the New Deal legislation unconstitutional if it had been given the chance. 

            Never mind that many insurance companies are now wondering how they can suddenly refuse to honor pre-existing conditions or deny coverage to children up to the age of 26 and that some in Congress are starting to fret over how they will avoid the backlash that is bound to develop once the new law is dead and the status quo ante returns.

            “Obamacare” may have been an easy target, but it did address real issues that real Americans care about.  Without it, those who opposed it will be hard pressed to explain what is supposed to take its place.