Excerpts from Wednesday's Supreme Court arguments over whether all of President Barack Obama's health care law should fall if the individual mandate portion is found unconstitutional and whether Congress was unconstitutionally coercive when it tied Medicaid money to the expansion of Medicaid in the law:
Plaintiff's attorney Paul Clement: No matter what you do in this case, at some point there's going to be ... if you strike down the mandate, there's going to be something for Congress to do. The question is really what task do you want to give Congress? Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care?
Justice Antonin Scalia: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the court to do that? Or do you expect us to give this function to our law clerks? Is this not totally unrealistic? That we're going to go through this enormous bill item by item and decide each one?
Deputy Solicitor General Edwin Kneedler: Well ...
Justice Elena Kagan: We have never suggested that we're going to say, look, this legislation was a brokered compromise, and we're going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference. Instead, we look at the text that's actually given us. For some people, we look only at the text. It should be easy for Justice Scalia's clerks.
Scalia: I don't care whether it's easy for my clerks. I care whether it's easy for me.
Scalia: This is really a case of first impression. I don't know another case where we have been confronted with this, with this decision. Can you take out the heart of the act and leave everything else in place?
Kneedler: What I'd like to say is this is a huge act with many provisions that are completely unrelated to market reforms and operate in different ways. And we think it would be extraordinary in this extraordinary act to strike all of that down because there are many provisions and it would be too hard to do it.
Scalia: Mr. Clement, I didn't take the time to figure this out, but maybe you did. Is there any chance at all that 26 states opposing it have Republican governors and all of the states supporting it have Democratic governors? Is that possible?
Clement: There's a correlation, Justice Scalia.
Scalia (before asking about one of Clement's arguments): Mr. Clement, the chief has said I can ask this.
Chief Justice John Roberts: He doesn't always check first.
Roberts: Well, why isn't that a consequence of how willing they (states) have been since the New Deal to take the federal government's money? And it seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done, they should not be surprised that the federal government having attached the ... they tied the strings, they shouldn't be surprised if the federal government isn't going to start pulling them.
Clement: With all due respect, Mr. Chief Justice, I don't think we can say that, you know, the states have gotten pretty dependent, so let's call this whole federalism thing off.
Roberts: You have another 15 minutes.
Solicitor General Donald Verrilli: Lucky me.
Verrilli: In this population of Medicaid-eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty. And the same thing will be true for a husband whose wife is diagnosed with breast cancer and who won't face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I can multiply example after example after example. In a very fundamental way this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the court's considering these issues that that be kept in mind.
Clement: Let me just finish by saying I certainly appreciate what the solicitor general says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it's a very strange conception of federalism that says that we can simply give the states an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the states to do whatever we tell them to. That is a direct threat to our federalism.
- Paul Clement
- Justice Antonin Scalia