What a difference preparation makes. If the Obama administration’s best laid plans came to fruition yesterday, Solicitor General Donald Verrilli’s defense of Obamacare would have gone as well as Paul Clement’s challenge of the bill went on day three of oral arguments.
Where Verrilli came across as flustered and unsure of his answers, Clement came across as cool, calm, and collected. Clement was as smooth as Verrilli was nervous. Clement successfully argued why the bill is unconstitutional.
“If the individual mandate is unconstitutional,” Clement said to open his argument, “then the rest of the act cannot stand.”
Clement went on to say that losing the mandate would cause the bill to “counteract Congress’ basic goal of providing patient protection” and “affordable care.”
The reason this is significant is that in order to keep health care costs and premiums down, there must be an individual mandate to force people into the insurance market that was yesterday compared to the food and emergency services markets by Justices Scalia and Alito.
“That may well be true,” conceded Justice Sotomayor, “ the figures vary from up 10% up to 30%. (But) we're not in the habit of doing the legislative findings.”
This is significant because the Obama administration has asserted that families “could save up to $2,300 each” buying insurance through state exchanges. One only has to look at the cost of education and the housing market though to understand what government subsidization has done to different markets in the past.
“Congress had before it (examples of states implementing provisions) and did not impose an individual mandate,” Clement said. “Congress rejected that model” because “having the individual mandate is essential.”
“Why should we be striking down a cost saver,” said Justice Sotomayor, “if what your argument is, was that Congress was concerned about costs rising?”
Clement argued that no matter what the Supreme Court decides, there is going to be work for Congress to do. Strike down the individual mandate and Congress has to re-approach the solutions to the individual mandate problem found by other states. Uphold it and Congress still has options because of the severability clauses included at every turn in the bill.
“We find that to violate the constitutional proscription of venality” Justice Scalia said regarding the “Cornhusker Kickback,” a state payoff that secured the final vote necessary for passage.
Scalia opined that if the court were to strike that provision in the bill down, when it was sent back to Congress to be voted on it would not pass and both houses would have to start from scratch to find a solution to the health care issue.
“That can’t be right,” Scalia said rhetorically.
“I think it can be,” Clement responded. “The provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this act … they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid,” Clement said.
“If you follow that through what you end up with at the end of that process is just sort of a hollow shell,” Clement said.