National Journal - Supreme Court Winds Up Health Care Oral Arguments

News Article

By Margot Sanger-Katz

The Supreme Court went into overtime as it finished up three days of oral arguments on the 2010 health reform law on Wednesday. Justices repeatedly interrupted attorneys trying to make the case for and against the 26 states challenging the validity of President Obama's signature domestic initiative.

The last issue being debated: whether the federal government is going too far in trying to get states to expand Medicaid to cover more people who don't have health insurance.

The courtroom was a little less packed for the last two sessions, the first of which looked at whether the heath reform law can even survive if one of its main provisions, the requirement to have health insurance, is struck. The justices seemed disinclined to dig into the long and complex law to take out discrete pieces. "You want us to go through 2,700 pages?" Justice Antonin Scalia asked incredulously. "My approach would be, if you take out the heart of the statute, the statute is gone."

In the afternoon session, Paul Clement, arguing for the 26 states challenging the law, got to speak for all of 10 seconds before Justice Elena Kagan interrupted him to ask: "Why is a big gift from the federal government a matter of coercion? It's just a boatload of federal money. It doesn't sound coercive to me, let me tell you."

Clement tried to make the case that federal funding is coercive when it is offered to states under certain conditions. Medicaid, the state-federal health insurance plan for the poor and disabled, is theoretically voluntary, but all the states take the federal cash.

The liberal justices--Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg--pressed Clement on this. Then, conservatives Scalia and Chief Justice John Roberts asked the government lawyer, Solicitor General Donald Verrilli, if he could ever imagine a scenario in which the government could use money to coerce the states.

Verrilli resisted. "It's very hard to say in the abstract," he said. Scalia didn't let up. "Not exactly a surprise question," he taunted.

There was so much back-and-forth that the justices had to tack on an extra 30 minutes in the end. "Lucky me," Verrilli groaned.

As in earlier sessions, the liberal justices tried to help out the government lawyers. Ginsburg said that while 26 states object to the Medicaid provisions, the other states seem to be happy with them.

And the White House weighed in from across town. "We're confident that the legislation is constitutional," Josh Earnest, deputy White House press secretary, told a news conference.

Outside the courtroom, some of the crowd thinned out, but the theatrics continued to the bitter end. Rep. Tim Scott, R-S.C., made a stand on the Supreme Court steps.

"It's very important for us to stand in opposition to 'Obamacare,' and this is one way we do it," Scott said. "For me it comes down to whether or not the government should get in the business of mandating anything on our citizens. Without question, I think the answer is no, so the individual mandate should be struck down, and that will allow for the unraveling of 'Obamacare' as we know it."

Rep. Paul Tonko, D-N.Y., showed up, too. "It's a monumental moment not just for history's sake but the quality of life of so many people," he said. "I just wanted to be there to talk to folks who have to come to the site of the Supreme Court to make their sentiments known and heard."

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