GOP up, Dems down after Supreme Court arguments on mandate

Republican lawmakers left Tuesday’s Supreme Court arguments confident that the government will have a tough time finding a fifth justice to uphold the healthcare law’s individual mandate.

Democrats had a visibly less sunny look than their GOP counterparts, although they said they found solace in pointed questioning of lawyers on both sides by Justice Anthony Kennedy and Chief Justice John Roberts. 

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“It was almost as if [Justices Elena] Kagan, [Stephen] Breyer and [Sonia] Sotomayor were bailing out the solicitor general,” Rep. Bill Cassidy (R-La.) told The Hill about Solicitor General Donald Verrilli’s performance. “And, frankly, it seemed like the only argument they could offer is one of expediency.”

Heart surgeon-turned-lawmaker Rep. Charles Boustany Jr. (R-La.) said that Kennedy “surprised” the packed courtroom with his questions as to the fundamental relationship between the state and citizens.

Boustany paraphrased Kennedy’s line of thinking as “there’s a higher burden of justification when you alter the relationship between the state and the individual.”

“That was a very stark statement, indicating to me that you have to hit a very high bar to believe that the individual mandate meets constitutional muster,” Boustany said.

While Democrats agreed the court raised concerns as to the extent of the federal government’s power, they argued that precedent seemed to be in favor of the mandate’s constitutionality.

“Justice Kennedy and Justice Roberts both asked good questions in both directions,” said Rep. Jim McDermott (D-Wash.), “and to me that’s an indication that there’s a real good chance it’s going to be found constitutional.”

House Judiciary Committee ranking member Rep. John Conyers Jr. (D-Mich.) shrugged off the significance of Kennedy’s line of questions, noting that all the justices pressed both sides equally.

“There were a lot of skeptical questions — the justices were pretty tough on both sides; they pushed everybody pretty vigorously,” Conyers told The Hill.

Only two dozen House members and senators snagged a coveted ticket to sit in the jam-packed courtroom for the untelevised arguments. And when Kennedy started on his line of questions, a source said, GOP lawmakers exchanged giddy glances. 

“If you were focused on Kennedy and a 5-4 decision —Kennedy being the swing — you’d have to feel better about your chances,” House Energy and Commerce Committee member Michael Burgess (R-Texas) said in an interview with The Hill.

Lawmakers were supposed to arrive at the Supreme Court by 9:15 a.m., but it was clear that some had more pull than others for the good seats.

Even though Burgess was in place before 9 a.m., he was stuck in the back of the courtroom, while House Ways and Means Committee Chairman Dave Camp (R-Mich.) arrived after 9:15 and had a seat in the front alongside several colleagues on the tax-writing committee.

Even those who did not attend the session did not hesitate to weigh in on the morning’s proceedings.

Senate Majority Leader Harry Reid (D-Nev.) warned conservatives against popping champagne corks just yet. He also challenged CNN analyst Jeffrey Toobin’s remark that the healthcare law “looks like it’s going to be struck down” because of the tenor of the morning’s hearing.

“I’ve been in court a lot more than Jeffrey Toobin and I had arguments, federal, circuit, Supreme Court and hundreds of times before trial courts,” Reid said. “And the questions you get from the judges doesn’t mean that’s what’s going to wind up with the opinion.”

Some Republicans were concerned that Roberts posed tough questions of the attorney representing the National Federal of Independent Business, which is challenging the law.

“Roberts had some questions in the second go-round that made you wonder why he was asking and where he was going with that,” Burgess said. 

“It sounded like Sotomayor got him [NFIB’s attorney] tied into knots, even admitting that a national health service-type program would be better, and I thought, ‘Stop talking! Stop talking! You’re not helping,’ ” Burgess said.

Freshman Sen. Mike Lee (R-Utah), son of former President Reagan’s Solicitor General Rex Lee — brushed off any concern with Roberts’s line of questions after watching the session.

“His questions, combined with his demeanor, his facial expressions, his body language, to me suggested that he was sympathetic to the argument that the individual mandate exceeds Congress’s power under the Commerce Clause,” the former Supreme Court clerk said.

Regardless of how the court rules, both parties vowed the fight wouldn’t end in June.

“It’s still a bad idea,” Senate Minority Leader Mitch McConnell (R-Ky.) said at a press conference immediately after oral arguments. “And if Senate Republicans become the majority next year, the first item on the agenda … will be the repeal of ObamaCare and the replacement with something that makes more sense and is targeted at the problems that we actually have in American healthcare.”

Democrats struck a defiant tone.

“Maybe I’m just one person saying this, but the more the Republicans and the candidates they have for president are out there talking about repealing the healthcare bill, I say, ‘Give them more rope,’ ” said Harkin. “Maybe I should buy their ads for them. Because the American people now are seeing the benefits of this healthcare bill that we passed, and they don’t want it taken away from them.”

— Posted at 1:51 p.m. and updated at 8:33 p.m.