By Sam Baker - 03/29/12 12:19 AM EDT
President Obama’s healthcare law appeared very much at risk after the Supreme Court on Wednesday concluded its historic review of the landmark legislation.
Justice Anthony Kennedy, the court’s traditional swing vote, for a second day in a row appeared deeply skeptical of the healthcare law’s individual mandate, suggesting he could side with other conservatives to toss it out in a 5-4 vote.
Chief Justice John Roberts noticeably pressed all three attorneys arguing the question of “severability,” and did not seem to have a clear opinion on whether tossing out the mandate meant the rest of the healthcare law must go too.
The court is expected to rule in June, raising the distinct possibility that Obama’s signature legislative achievement could be ruled unconstitutional in the midst of a heated reelection campaign that both sides expect to be close.
The Hill's Supreme Court coverage:
♦ AUDIO, TRANSCRIPT: Day 3 hearings on 'severability'
♦ AUDIO, TRANSCRIPT: Day 3 hearings on Medicaid
♦ Scarborough: Court loss would be 'big win' politically for Dems
♦ White House has no contingency plans if health law is tossed
♦ Scalia: 'Cornhusker Kickback' was bribery
♦ Lawmakers back to talking points as court leaves them in dark
♦ Pelosi: Dems ready to accept Supreme Court verdict
Political pundits were already offering predictions on how such a dramatic ruling might roil the race for control of the White House and Congress, with Democratic strategist James Carville and GOP pundit Joe Scarborough both arguing it would energize the Democratic Party and boost Obama by allowing the president to run against a right-wing court.
The two suggested a court decision months before the election that eviscerated Obama’s healthcare law could invigorate Democrats much the way the approval of the law energized conservatives.
“I personally believe politically that helps Democrats … a lot, because I’d rather run against a negative — I’d rather run against the extremist right-wing Roberts court,” Scarborough said Wednesday on his MSNBC talk show.
The White House and House Minority Leader Nancy Pelosi (D-Calif.) refused to speculate on the political dynamics, with the former Speaker saying her caucus would respect what ever decision the court made.
“Democrats in the Congress have long believed in judicial review,” said Pelosi, who in the past had scoffed at suggestions the court could rule the healthcare law was unconstitutional. “This is part of our constitutional process, and we respect it,” she added.
The White House, for its part, said it had no contingency plans in the event that the law is thrown out.
The marathon proceedings have captivated political Washington, shifting the center of power to a judicial branch that, unlike its legislative and executive partners, works without the presence of television cameras.
Over three days the court’s conservative justices aggressively challenged government lawyers defending the law, while the four liberals — including two justices nominated to the court by Obama — repeatedly defended it.
Kennedy seemed to side with the conservative justices Wednesday, questioning whether the court would be overstepping its bounds by only striking down certain parts of the healthcare law. He was also concerned about how a decision to strike only the mandate would affect insurance companies.
“We would be exercising the judicial power, if one provision was stricken and the others remained, to impose a risk on insurance companies that Congress had never intended,” Kennedy said.
Justice Antonin Scalia said the court should scrap the whole law and let Congress start over, rather than asking lawmakers to fix what’s left of Obama’s law.
“Whether we strike it all down or leave some of it in place, the congressional process will never be the same,” Scalia said. “One way or another, Congress is going to have to reconsider this.”
If the Supreme Court strikes down the mandate but does not throw out the entire law, it would force Congress to come up with an alternative way to prevent healthcare costs from skyrocketing. The mandate was included to offset the cost of other policies that require insurers to cover sick people.
Deputy Solicitor General Edwin Kneedler said the court would have to strike two other provisions along with the mandate: the requirement that insurers cover anyone who applies and the ban on charging higher prices to customers with pre-existing conditions, two provisions that are more popular politically.
The final session of arguments centered on whether the court will overturn the healthcare law’s Medicaid expansion. The states that filed the legal challenge say it’s “coercive” and at odds with the fact that Medicaid is, legally, a voluntary program operated jointly by states and the federal government.
The health law expands Medicaid eligibility to everyone at or below 133 percent of the federal poverty line. The federal government will initially cover all of the new costs, but states that don’t adopt the new eligibility levels could lose all of their federal Medicaid funding — not just the portion associated with the expansion.
Justice Elena Kagan pounced on that federal funding while questioning Paul Clement, who represented the states. She asked whether it would be coercive to offer him a job paying $10 million per year just because it would be hard to turn down.
“It’s just a boatload of federal money to take and spend on poor people’s healthcare,” Kagan said. “It doesn’t sound very coercive to me.”’
The court’s conservative justices, however, argued that by threatening to cut off all federal Medicaid funding to states that don’t participate in the expansion, the federal government was making a threat it knows it won’t have to follow through on.
Kennedy did not take a clear position on the Medicaid issue, which is widely seen as the weakest part of the states’ case.
Solicitor General Donald Verrilli Jr. was back before the high court Wednesday to defend the Medicaid expansion, following a poorly reviewed performance Tuesday during the debate over the mandate’s constitutionality. Roberts and Scalia backed Verrilli into a few tough spots Wednesday, but none of it approached the stumbling opening statement he delivered the day before.
Verrilli and Roberts made light of the aggressive questioning Wednesday. Roberts paused during an exchange over federal spending to tell Verrilli there were still 15 minutes left in his argument.
“Lucky me,” Verrilli responded.
—This story was posted at 12:11 p.m. and updated at 8:19 p.m.