If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in and expecting the demise of the mandate seemed decidedly premature.

The Justices will cast their first votes on the mandate’s constitutionality later this week, and there are perhaps three months of deliberations that would then follow.  Much will be said and written within the Court in private during that time, and that obviously could affect the ultimate outcome.  The argument on Tuesday pointed the Justices in opposite directions – the first hour against the mandate, the second hour cautiously in its favor.   Curiously, that was just the opposite of what the lawyers were seeking out of their sides of the hearing.

Justice Antonin Scalia led the charge against the mandate in the first part, but remained largely silent in the second.  When he was on the offensive, he seemed to have the Chief Justice and Justice Samuel A. Alito, Jr., clearly with him, and there were repeated signs that Kennedy, too, was against it.

Since Justice Clarence Thomas is known to be a determined foe of broad power in Congress to regulate economic matters, he very likely would join those four if they were to coalesce around a decision to nullify the requirement that virtually all Americans must obtain health insurance by the year 2014 or pay a financial penalty.  The argument that such a decision would seem likely to employ, were it to come, would be that Congress took a totally unprecedented step in ordering healthy Americans to go out in the marketplace to buy an insurance policy they did not want, do not now need, and may never use, and this step was but the first step in massive over-regulation of private choice.

That argument, indeed, was the one that the conservative members of the Court repeatedly pressed while the Solicitor General was offering his defense.  The fear of this Orwellian prospect led Justice after Justice to ask for some constitutional principle that would limit the expected damage to the Republic.  Verrilli’s main response was the uniqueness of the health insurance industry, but that did not deter the continued complaint from the bench that Congress would not stop there if it had the Court’s endorsement for this initial foray into Super Government.

Justice Stephen G. Breyer was the most vigorous defender of Congress’s power to select the mandate as the key piece in the new health care law’s regulation of the insurance industry, but almost equally in its favor were Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.  But those four, of course, cannot control the outcome on their own.   In the end, if Kennedy were to wind up accepting the mandate’s validity — however reluctantly — those four could then be in the majority.  Such a majority, it appeared, would probably form only behind the theory that the mandate was within Congress’s power under the Commerce Clause, not under its taxing authority in the General Welfare Clause.  The tax argument seemed to lack force, and, anyway, Verrilli used it primarily as just a backup.

If that coalition were to form, it would be likely that Justice Kennedy, the senior among those five, almost certainly would assign the opinion to himself — unless, of course, the Chief Justice ultimately were persuaded to go along so that this historic case did not turn out to be decided by a possibly embarrassing 5-4 vote.   Roberts was among the more combative adversaries of the mandate, during Verrilli’s argument, but he made considerable efforts to remind the challengers’ lawyers of the government’s key points when they stood before the Court, perhaps to test how solid their answers to those points would be.  His vote in favor of the mandate did seem like a long shot, unless he found institutional imperatives for going along if a majority were formed to uphold it.

During Verrilli’s argument, the more conservative members of the Court initially seemed to be simply playing back the arguments that the challengers had made in their written briefs.  But, as the hearing progressed, it looked increasingly as if those Justices actually were strongly tempted to accept those contentions as their own.   If there was something of a surprise in this, it was the fervor of Justice Kennedy’s expression of his concerns.

Kennedy’s first comment, to be sure, was simply a repeat of the challengers’ most basic point: “Can you create commerce in order to regulate it?”  It was an almost direct quotation from the 26 states’ and the private group’s briefs.  But, before long, the depth of his worries was evident.  He told Verrilli: “Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.  If that is so, do you not have a heavy burden of justification?  I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”

The Solicitor General’s response was not directly responsive; he talked, again, about the uniqueness he saw in the health care market and its conventional source of paying for care — health insurance.

Somewhat later, Kennedy said again that he was concerned.   He gave Verrilli some history, reminding him that customary law provides that one does not have a duty to rescue someone “if that person is in danger.”  But, in the case of the mandate, “here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the federal government to the individual in the very fundamental way.”

This time, the government’s lawyer explicitly disagreed, countering that most Americans were already users of health services, so they already were in the market, rather than being drawn into it by congressional command, and the only issue was when and how they would pay for the care they ultimately would get.

Later on, it would appear that Kennedy had some doubt about whether the health insurance market was, in fact, a unique phenomenon.  But near the end of the entire argument, when challengers’ lawyer Michael A. Carvin was at the lectern, Kennedy made a comment that hinted that he may have started to see the issue differently.

To understand its significance, the context of this later remark is important.   Justice Breyer had again, as he had done several times during the challengers’ argument, stressed that Congress was confronted with a situation in which some 40 million people did not have insurance, and that gap was, in fact, having an effect on commerce that was substantial.   “So,” Breyer said, “I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, but simply whether those decisions of that group of 40 million people substantially affect the interstate commerce that has been set up in part” through a variety of government-sponsored health care delivery systems.  That is, Breyer told Carvin, ”the part of your argument I’m not hearing.”

Carvin, of course, disputed the premise, saying that Congress in adopting the mandate has chosen it as a method to leverage health care coverage for all of the uninsured across the nation.  Kennedy interrupted to say that he agreed “that’s what’s happening here.”  But then the Justice went on, and suggested that he had seen what Breyer had been talking about.   “I think it is true that, if most questions in life are matters of degree,” it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That’s my concern in the case.”

That was the core of Verrilli’s claim about what Congress had confronted,  and Kennedy had just phrased it — not as the government’s argument — but as his own perception.  In both tone and content, it sounded like a sudden change.

Chief Justice Roberts, who had gone beyond skepticism to somewhat sarcastic rejection of Verrilli’s arguments, did have a bit of a turnaround — at least in tone — when the challengers’ lawyers (Carvin and Paul D. Clement) were at the lectern.  At several points, he brought up some of Verrilli’s points, at least implying that they may have something to them.   Nonetheless, it still would be difficult to find him, happily, voting in favor of the mandate.  Perhaps, though, as the decision developed in coming weeks, Roberts had left himself some room to maneuver, perhaps to join a Kennedy-led coalition for the mandate.

Incidentally, perhaps, the arguments of all three lawyers turned out to have been entirely predictable, if one had read their merits briefs.   Those were of high quality, and so was the oral rendition of them, although the Solicitor General might have done somewhat better had he sharpened his comments that there are limiting principles that the Court could rely upon if it were to uphold the mandate.  Justice Alito asked pointedly for Verrilli to state the limiting principles of his position as briefly as he could, but the Solicitor General’s response was not crisp or even very clear.

(The Court’s three days of argument on the Affordable Care Act conclude tomorrow, with a morning hearing on the question of what parts of the Act, if any, survive if the mandate were to be nullified, and an afternoon hearing on the constitutionality of the Act’s broad expansion of the Medicaid program for the poor.  The arguments probably will be entirely finished by about 2 p.m. tomorrow.)

Posted in Analysis, Featured, Health Care, The Constitutionality of the Affordable Care Act

Recommended Citation: Lyle Denniston, Argument recap: It is Kennedy’s call (FINAL UPDATE 3:14 pm), SCOTUSblog (Mar. 27, 2012, 5:41 PM),