Uncertainty on ACA Day 3 (exhaustion sets in)

Again, some initial impressions.  Listening to the severability arguments today, the justices appeared to be pushing Mr. Clement pretty hard.  He is a remarkable orator, but he steadfastly proposed a judicially unworkable standard, that the law cannot be left a “hollowed out shell,” and it was clear that the justices were asking for more than a rhetorical device.  They also just seemed uncomfortable with striking the entire ACA when many aspects of the law are unrelated to the Title I private insurance reforms.  But then, as Mr. Kneedler took the podium, the justices were equally skeptical of his proposal, to strike just the individual mandate, guaranteed issue, and community rating requirements.  It seemed that the justices favored some kind of severability, but none of them were interested in the task (Justice Scalia called it a violation of the 8th Amendment).  Also fascinating was the amount of leeway Mr. Farr was given to ‘bat cleanup’ in his Court-appointed role.  He was permitted long monologues that the justices’ aggressive questioning had not allowed until he spoke, and his exposition was excellent.  He even responded well to a question regarding the economics of insurance that Kneedler didn’t really answer.  Nevertheless, his position, that only the individual mandate should fall, was not the clear winner either.

As for the Medicaid arguments, it seems possible that the Medicaid expansion will survive.  The more left-leaning justices questioned Mr. Clement relentlessly and once again his performance was notable, but his responses were a bit repetitive; they lacked the eloquence of the argument regarding the individual mandate, and his position was rather extreme.  The states are, after all, asking the Court to ‘fashion’ doctrine for them.  In some ways, the justices’ questions reminded me of the way the majority and dissent were articulated in Douglas v. ILC — the justices that seemed to favor upholding the expansion were attuned to the nature of the Medicaid program and the heavy burden the federal government will shoulder for the expansion population, whereas the justices that were interested in the concept of coercion almost seemed to find the vehicle of Medicaid irrelevant.  

General Verrilli did not shine in his defense of either the spending power or Medicaid.  When repeatedly asked why the Secretary of HHS does not exercise the power to withdraw all funding, his simple answer should have been, “because it would harm the beneficiaries of the program, so it’s never been done in 47 years.”  Instead, he made statments about not wanting to paint the Secretary into a corner and avoided the question.  It was confounding, and Justice Kagan finally made the point for him. 

Justice Kennedy sounded as if he was trying to import the New York v. US concept of political accountability into the spending power, but the other justices did not appear eager to apply New York to cooperative federalism programs.  I still believe that the Court may try to find a way to clean up the concept of coercion (though the oral arguments did not shine a bright light on what the doctrine will be) but may not find this particular expansion to be problematic. 

As a side note, Justice Scalia made his distaste for the invidual mandate pretty clear when he noted the political failures of enacting the law.  (“I would have thought there was serious political strain – constraint on the individual mandate too, but that didn’t work. What you call serious political constraints sometimes don’t work.”)

Everyone sounded pretty punchy by the end.  But also, I agree with Scott that Justice Sotomayor wins the gold star for excellent questions during this full set of arguments.

 Some distance will help to make the tea leaves a bit clearer, perhaps.  I agree with Jennifer that the Court often tries to give each side a ‘cookie’ but I’m not sure who gets which cookie at this point.  Also, Eddie, I hear your point, but that is not how health insurance currently works in this country (see Kevin Outterson’s fine post at the Incidental Economist here).

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2 Responses

  1. Edward Hartnett says:

    I am not claiming that this is the way health insurance currently works in this country, but simply that a system very very close to the ACA could be implemented even under the challengers’ view of the commerce clause. Making everyone who purchases health care buy a long-term insurance policy would not get everyone into the risk pool, but it would get very close. Most healthy people go to the doctor at least once every few years, right? If every time a young, generally-healthy person needed an antibiotic or birth control pills, he or she had to buy a long-term insurance policy — with exactly the breadth of coverage, including preventive care, envisioned by the ACA — there would be plenty of risk pooling with plenty of healthy people in the pool lowering the average cost.

    Would it leave out some people? Sure, all those young healthy people who go years without visiting a medical professional for anything, not eyeglasses or a dental issue or an antibiotic or birth control. I just doubt that there are very many such people, or at least that there are very many such people who wouldn’t be exempt from the penalty under the existing ACA. Am I wrong about that?

  2. Nicole Huberfeld says:

    Thanks for the clarification. The method you describe, with the remaining elements of PPACA in place, would get more people into the risk pool – and yes, a number of them would still be deemed healthy (or healthy enough not to draw on the pool most of the time so that the very sick can still have benefits covered). Of course, it does not have the same ring as ‘universal coverage’ and as you say, wouldn’t achieve it either, but we would still have a larger population covered. I think, though, that the cost concerns remain real.