Supreme Court healthcare case: Arguing with nerves and nuance
- 27 March 2012
- From the section US & Canada
This was a day when the powerful came to sit and listen.
On the benches of the US Supreme Court, Washington's elite mingled and muttered as they awaited the entrance of the six men and three women who will decide the fate of President Barack Obama's healthcare law.
There was Attorney General Eric Holder, head of the justice department, which had asked the court to hear the legal challenge that could see it struck from the statute book.
A dozen or so seats along from Mr Holder sat Mitch McConnell, the Republican leader in the Senate, a man who famously said he would do everything in his power to make Mr Obama a "one-term president".
There were congressmen and women galore, as well as serried ranks of Washington's legal and policy elite.
Down in front of the press pen a pair of immaculately turned-out schoolboys sat quietly with mother to witness a piece of history.
All three days of the Supreme Court hearing are box office sell-outs. Tuesday's arguments, though, were the very heart of the case.
The divisive requirement for all eligible Americans to purchase health insurance if they do not receive it from another source - the so-called individual mandate - was up for debate. Would this be the moment when the justices showed their intentions?
The pressure may have got to Donald Verrilli. President Obama's solicitor general, tasked with defending the mandate, struggled to find his voice.
Faced with an hour of cross-examination by the nine justices, Mr Verrilli could barely squeeze his first words out. He sounded nervous, continually coughing to clear his throat.
He opened with a statement of fact: "Insurance has become the predominant means of paying for for healthcare in this country," he said.
He added that more than 40 million Americans do not have access to insurance from their employers or the government and must rely on the expensive and inefficient market for individual plans.
"The system does not work," Mr Verrilli said.
Mr Verrilli's task was to persuade a majority of the justices that the individual mandate is legal under the terms of the commerce clause of the US constitution, which allows Congress to regulate activity that affects interstate commerce, and others granting authority to levy taxes.
He had barely recovered his poise when he faced a volley of questioning from some of the court's conservative justices, who seemed concerned that allowing the mandate might set a precedent for expanding government power.
"You don't know when you're going to need it, you're not sure that you will," Chief Justice John Roberts said of healthcare.
"Can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?"
If everybody needs healthcare, asked Antonin Scalia, what about food? Would this mandate allow the government to require that all Americans buy healthful foodstuffs, such as broccoli?
The broccoli comparison was widely trailed, having been part of a previous judgement by a Florida judge who found the healthcare law unconstitutional on its way to the Supreme Court.
Other comparisons and hypotheticals abounded. What about burial services, asked Justice Samuel Alito? Everybody needs to be buried, eventually, or perhaps cremated.
Mr Verrilli stuck to his narrow task - an effort to define healthcare services as a unique market in which everybody uses services at some point, and the costs of choosing not to have insurance are shifted on to the policies of those who do have it.
"If you don't have burial insurance and you haven't saved money for it, you're going to shift the cost to somebody else," Justice Alito said.
Mr Verilli was buffeted by questioning, including a pointed remark by Justice Anthony Kennedy, seen as the court's swing justice and one whose vote could seal the decision.
"Do you not have a heavy burden of justification?" Justice Kennedy asked.
"Congress has the authority under the commerce power... to ensure that people have insurance in advance of the point of sale because of the unique nature of this market," Mr Verrilli replied, adding that "virtually everybody" is part of the healthcare market.
And on it went.
While there were more sympathetic questions from liberal justices Ruth Bader Ginsburg and Stephen Breyer, Mr Verrilli appeared at times to struggle to articulate a clear justification for why healthcare was so different from everything else which Congress had not chosen to regulate.
The two lawyers who followed faced a different sort of scepticism. Justices Scalia and Alito took a backseat, with the liberals - including Mr Obama's appointees Sonia Sotomayor and Elena Kagan - much more prominent.
The comparisons and precedents returned: Is the healthcare market like the wheat market, subject of a landmark 1942 ruling that said one farmer's crop impacted the interstate trade?
Is it like home-grown medical marijuana, which the court ruled in 2005 was only a moment away from the interstate market?
Or perhaps like the car insurance market, where individual states compel people to buy insurance or face penalties? If a state were to choose not to require car insurance, could Congress insist in its place?
If a deadly virus was sweeping the United States and was poised to kill 40%, maybe even 50% of the population, could Congress compel Americans to take a vaccination?
Paul Clement, representing the 26 states challenging the law, stood firm and turned the issue back to the justices.
"The question that's a proper question for this Court, though, is whether or not, for the first time ever in our history, Congress also has the power to compel people into commerce, because, it turns out, that would be a very efficient things for purposes of Congress's optimal regulation of that market," he said.
As the hearing wound up, Mr Verrilli was given one more chance to make his point for the Obama administration.
The US constitution, he argued, must be interpreted to allow Congress "to be effective in addressing the great crises of human affairs" that the documents framers "could not even envision".
With one president's signature achievement at stake, Mr Verrilli said this law had effectively been tried and tested already.
The state of Massachusetts had pioneered the individual mandate, Mr Verrilli told the justices, and there was "every reason" to believe it would work at a national level.
He did not mention Mitt Romney, the Republican presidential front-runner who signed the Massachusetts bill into law.
But it was a reminder to everyone that politics are never far from the healthcare debate - even inside the marble halls of the Supreme Court.