Commentary on Yesterday’s Supreme Court Action

March 28, 2012

One thing is clear after the March 27 oral argument, the second of four arguments over three days:  The federal government has four votes for upholding the minimum coverage requirement.  It is also clear, however, that there is no obvious fifth vote for reversing the Eleventh Circuit.  Justice Thomas, as is his wont, remained silent through the entire argument, but his vote has never been in question.  Chief Justice Roberts and Justices Scalia, Kennedy, and Alito, however, pelted the Solicitor General repeatedly with pointed questions, rarely giving him a chance to complete an answer.  Justices Kennedy and Roberts, however, showed just enough skepticism regarding the arguments offered by the state and private parties to leave the result in doubt. — Tim Jost, Health Affairs blog

Supporters of the law may take away some measure of hope that the Chief (and, in my view, Justice Kennedy) recognize that Congress was facing a very difficult and nearly unique problem here and that as a result, upholding the law would not commit the Court to any significant broader expansion of congressional authority.  But both he and Justice Kennedy seemed quite concerned about the need for a doctrinally coherent limiting principle, and neither seemed particularly persuaded by the government’s answers today. –Kevin Russell, The Scotusblog

The insurance mandate is nothing like requiring people to buy broccoli — a comparison Justice Antonin Scalia suggested in his exasperated questioning of Solicitor General Donald Verrilli Jr. Congress has no interest in requiring broccoli purchases because the failure to buy broccoli does not push that cost onto others in the system. — New York Times editorial

This response (by Justices Alito and Scalia) was and is bad economics. It is true that every commodity is produced along what economists call a “cost curve”—raising output may lower average or marginal unit costs by spreading overhead or achieving economies of scale, but it may also raise costs by forcing up the cost of inputs or incurring diseconomies of scale. None of this occasions concerns about fairness or free-loading or, to use the economist’s term, “externalities.” But the cost shifting that occurs when uninsured patients fail to pay their bills does; it causes one group—the insured—to have to pay part of the cost of services others use. – Henry Aaron, Brookings Institution

Today the Court hears separate arguments on Medicaid, and the themes in that controversy dovetail with those of the individual mandate. Just as the Court may rule that commerce powers are broad but not unlimited, the same is true for the spending power. – Wall Street Journal editorial

In weighing how the contemporary Supreme Court behaves, there’s a relevant precedent here. In the Citizens United case, the Supreme Court not only rejected a major piece of legislation but created a constitutional standard that makes any meaningful campaign-finance legislation next to impossible to pass. The question is whether they will do the same with health-care reform. – Jeffrey Toobin, The New Yorker

Some states are now contemplating the possibility of devising alternatives to the federal mandate if the Supreme Court strikes it down—alternatives that sound suspiciously like state-level versions of the federal mandate. If these laws pass, you can bet that some of the same pro-business groups that are currently challenging the federal mandate as a violation of states’ rights will rush back to court to challenge the new mandates as a threat to national uniformity. – Jeffrey Rosen, The New Republic

Before (Tuesday’s) arguments, credible legal experts were still thinking the court would uphold the law by a majority of six-to-three or even seven-to-two. Now the betting seems much more mixed, with the smartest court watchers I know suggesting the outcome could really go either way. The odds, in other words, are 50-50 at best. – Jonathan Cohn, The New Republic

So long as the court does not invalidate the entire law, many other components — and the taxes to pay for them — could remain in place even if the mandate and related insurance regulations are struck down. They include a vast expansion of Medicaid eligibility and the establishment of health insurance exchanges, offering subsidized coverage to those with low incomes, both scheduled to start in 2014. Other provisions that might survive include increased prescription drug benefits for Medicare recipients, requirements that insurers cover preventive services like cancer screening, incentives for doctors to adopt electronic records, and grant programs aimed at disease prevention and restructuring the medical payment system. – Kevin Sack, New York Times

The stock prices of health insurers fell in the morning as word emerged of Justice Kennedy’s skeptical questioning, then recovered somewhat as a fuller picture emerged. Health insurers fear that if the mandate is struck down but the rest of the law survives, they would be forced to accept millions more sick customers without enough new healthy customers to balance out the risk pool. –Wall Street Journal news story

The principle that the legal authority to regulate X implies the authority to regulate anything that can affect X is a huge and dangerous leap of logic in a world where all sorts of things have some effect on all sorts of other things. – Thomas Sowell, National Review

If the Court strikes down the mandate . . . So what then? One obvious option, besides just doing nothing and allowing health care costs to continue their exponential growth while more people lose coverage, is a single-payer health insurance plan. There is no doubt about the constitutionality here—the government is clearly allowed to levy taxes to fund public benefits. – George Zornick, The Nation

It’s never easy to predict how the Supreme Court will decide a case, especially one that will have a major impact on the next election. If politics governs the court’s decision, as it has at times when the country is deeply divided over contentious social and economic issues, the mandate will probably be struck down. – Merrill Goozner, The Fiscal Times




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3 Responses to Commentary on Yesterday’s Supreme Court Action

  1. Elaine Schattner on March 28, 2012 at 9:08 am

    Thanks for putting these summaries together, Merrill. I’m not a constitutional lawyer, but I do have a strong view on the subject of HCR. I wrote on it yesterday at Medical Lessons.

    • GoozNews on March 28, 2012 at 5:41 pm

      Thanks for writing, Elaine.

  2. Mark Bridger on April 2, 2012 at 6:46 am

    The Republicans learned their lesson with Earl Warren, William Brennan, John Paul Stevens: make sure that your Supreme Court nominee is as inflexibly conservative as you initially think he is. I believe that they have succeeded with a solid front four: Scalia, Roberts, Thomas and Alito. Kennedy is generally a reliable conservative, but not always. (Note: both swing voters Kennedy and Sandra Day O’Connor were Reagan appointees.)

    Arguments that see Roberts or even Scalia taking a reasoned attitude on the healthcare bill — or even worried about the appearance of a “politicized — are probably just wishful thinking. It is exactly to avoid liberal deviations in this kind of scenario that these appointments were very carefully vetted by the Republican presidents who appointed them to the Court.

    So once again it boils down to how Kennedy may vote. The few questions that he asked did not bode extremely well for “ObamaCare”. Once the Court starts talking about what it thinks is bad for the country, how to limit government power, or what they would like or not like to see, instead of what is actually constitutional, then it sounds bad for the issue under contention.

    Elections have consequences. When you elect Republicans, don’t be surprised or dismayed at what they do. The trick in avoiding damage is not to elect them in the first place. Their main and not-unrelated goals are to transfer wealth from the middle class to the wealthy and to keep government from regulating industry. This has become more clear than ever in the last dozen years.

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