U.S. Supreme Court justices today begin the end of the two-year debate over the constitutionality of the Affordable Care Act's individual mandate.
The mandate requires that virtually every American, starting in 2014, have health insurance or pay a tax penalty. And virtually every American has seemed to weigh in over whether this key provision of the health care reform law is a lawful exercise of congressional power -- except for the nine men and women who, by their job descriptions, have final say over these things.
The extraordinary six hours of oral arguments scheduled over three days started on Monday, when the justices lawyered to death a technical issue that stood between them and the possibility of striking down a sitting president's signature legislative achievement for the first time in over 75 years.
During today's two-hour argument -- twice as long as the 60 minutes the court usually allots each case -- the justices will pepper each side's superlawyers with questions that will give public hints of how they will ultimately decide the case by late-June.
The court's four Democratic appointees -- Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan -- are all expected to side with Solicitor General Donald Verrilli's primary argument on behalf of President Barack Obama's administration that the mandate falls within Congress' broad power to regulate interstate commerce. The inevitable consumption of health care services by the uninsured, Verrilli will argue, substantially affects the national insurance market by shifting costs to the insured and creating the problem of skyrocketing premiums that the Affordable Care Act was designed to solve.
Justice Clarence Thomas, on the other hand, need not break his six-year streak of silence at oral argument to reiterate his oft-written antipathy towards the New Deal precedents Verrilli's argument draws upon for support.
So while there is always a vanishingly slim chance that one or two of the liberal justices will surprise the public with some pointed questions for the solicitor general, it is more likely that they will try to win over their remaining four conservative colleagues by putting the screws into the challengers' lawyers.
That may be a challenge, however, given who those lawyers are. Paul Clement, who served as solicitor general under President George W. Bush, represents the states and is widely hailed as the best Supreme Court advocate of his generation. Only 45 years old, he may be a prime candidate for a Supreme Court appointment by a Republican president unless his current slate of cases taking very conservative positions on health care, immigration, voting rights, and gay marriage will make him too controversial to confirm. Michael Carvin, a colorful veteran of the Supreme Court bar, will argue for the National Federation of Independent Business and the handful of individuals serving as private plaintiffs in the suit.
With 30 minutes each on Tuesday, Clement and Carvin will take the position made in their briefs that the mandate is a grave threat to individual liberty resting on the federal government's "unprecedented and unbounded" assertion of power to "compel individuals to engage in commerce in order more effectively to regulate commerce."
The challengers' commerce clause arguments are full of bombast and ambition, and they may yet gather the sympathies of the court's conservatives. But winning all five conservative votes is far from certain. Even if Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito believe the commerce clause cannot cover the mandate, they have all at one time or another supported far-reaching assertions of federal power under a clause of the Constitution that allows Congress to pass laws "necessary and proper" to execute its established powers.
Verrilli's secondary argument takes this tact. Congress, he notes in the government's brief, modeled the Affordable Care Act after Gov. Mitt Romney's Massachusetts plan. Romney's plan, which included a mandate, succeeded in containing costs and ensuring universal care where seven other states that attempted reforms without a mandate failed. The Obama administration maintains, therefore, that the mandate is a necessary component for Congress to assert what all parties agree to be its power to regulate the national health care market -- 18 percent of the gross domestic product.
The third and final argument Verrilli will advance is that the penalty for not obtaining health insurance constitutes an exercise of Congress' taxing power. Yet on Monday, Verrilli told the justices that the penalty was not a tax for purposes of a 19th-cenutry statute that bars suits to stop taxes until those taxes have actually been paid. And all but three of the 16 federal judges to take on the health care challenges have rejected the tax argument.
For all the anticipation surrounding Tuesday's arguments, there will be nothing said that has not already been explored by four district judges, 12 circuit judges, hundreds of briefs, and countless commentators. Instead, the big news when the spectators spill out of the Supreme Court at noon will be which arguments flew strongly enough with which justices to fuel a final flurry of speculation that will last until the court finally puts to rest the parlor games with its ruling three months from now.