On Wednesday, the last day of oral argumentation in the case against the Affordable Care Act, the Supreme Court once again brought Solicitor General Donald Verrilli, Jr. and former Solicitor General Paul Clement to the lectern for two oral arguments. The first part considered the legal question of severability -- what happens to the ACA if the individual mandate is struck down. The second part considered the legal question of whether the ACA's Medicaid expansion is unconstitutional.
The question of severability has garnered much more attention ever since Tuesday's oral argument. Had this case proceeded as court watchers expected, yesterday's arguments would likely have been perceived as after-the-fact hypothetical decision-making. But with the Court seemingly skeptical of the individual mandate, the third day of the proceedings was as critical as ever.
Clement took to the lectern to argue that an ACA without the individual mandate is no ACA at all. He reasoned that because parts of the law are so interconnected, this part falling necessitated the implosion of the entire legislation. His line of argumentation found it better for Congress to begin anew than to give it a mangled shell of a law to work with. While some justices expressed skepticism at this all-or-nothing take, it was Justice Kagan who asked explicitly, albeit rhetorically, "Isn't a half loaf better than no loaf?" From her analogy, it appears Justice Kagan believes in the ability of the ACA to grant at least some benefit worthy of keeping intact.
Justice Kagan (as well as other justices) also expressed concern that the Court would be overstepping its bounds to strike so many provisions that Congress could have passed without the individual mandate; she asked Clement why the task of sifting through the provisions worth keeping couldn't be left to Congress. This question becomes a key theme for the narrative of the ACA's supporters: if the law is too messy to take apart, it may be better to keep everything. This theme, in turn, gives those eager to sever the individual mandate some misgivings about the consequences. In answer, Clement argued that it is unlikely Congress will actually perform this task. Supporting Clement's response, Justice Scalia asked (also rhetorically) whether there was "such a thing as legislative inertia."
H. Bartow Farr, another counsel brought into the oral argumentation, attempted to persuade the justices that the entirety of the ACA could survive if the individual mandate was struck down. Justice Scalia once again scrutinized clean severability and made the case that health insurance would collapse if the insurance companies lacked the premiums of healthy individuals to balance the risks and costs of the less healthy. Where Farr argued that there were other incentives to enroll the healthy to balance costs, some justices expressed further skepticism. What one could take away from the proceedings was a kind of Goldilocks dilemma: The justices do not seem to believe that the individual mandate can be struck down in isolation, but they also do not seem to buy the argument that the whole legislation must go. The charge of the Court, then, is to find out what is just right.
The second segment of oral arguments concerned the ACA's expansion of Medicaid.
Clement sought to ask and answer two questions in his argument: First, whether the Medicaid expansion is coercive, and second, whether that coercion matters. Right from the get-go Justice Kagan presented Clement with a hypothetical situation to zero in on his sense of coercion. When Clement said even a full gift of $10 million could potentially be coercive, Justice Kagan's flabbergasted response drew laughs from the crowd.
This exchange seemed to draw the line in the sand between Clement and Verrilli as they made their appeals to the bench. Where Clement was surgical in his defense of states' rights from the Medicaid expansion, Verrilli appealed to sympathy for the poor who would stand to benefit the most from the expansion.
Much of this segment centered around the theory of coercion -- the case in which the federal government places such burdensome conditions on taking its money that states are functionally forced into compliance. While Verrilli argued that this wasn't the case at hand, the debate took coercion as the key issue. But while coercion dominated the discussion, the discourse was not always in Clement's favor. Between hard-hitting hypotheticals from Justice Kagan and the heated exchange Clement shared with Justice Breyer over whether the statute applied strictly to formal coercion, the left side of the Court arrived at its main concern, expressed by Justice Sotomayor: A strong ruling in favor of Clement's petitioners would irreparably "tie the hands of the federal government" to enter into cooperative ventures with states.
If only because Justice Kennedy is so often the swing vote, his comments are worth noting. During Solicitor General Verrilli's time at the lectern, Justice Kennedy assumed coercion theory to be fact and asked who individuals in states could hold accountable if the state lost funding for its refusal to adopt provisions in the ACA. In some ways, the issue of blame here harkens back to Justice Sotomayor's concern. However, Justice Kennedy seemed not to be looking for a reason to strike down the law because the federal government would bear blame. Instead, Justice Kennedy seemed more concerned to find a "clear line of accountability so the citizen knows it's the federal or the state government should be held responsible for the program." This decision could turn on what Justice Kennedy finds to be proper in his view of federalism.
Rajiv Narayan is the Senior Fellow for Health Care Policy at the Roosevelt Institute | Campus Network and a graduating senior at the University of California, Davis.