PPACA and the Supreme Court: Day three — Reading the tea leaves

By Paul Wilson


On the third and final day of the Supreme Court’s debate on health care, justices discussed the issue of severability —whether portions of the bill can survive if the health mandate is struck down.

As expected, arguments between the two sides remained heated and divisive.

This comprehensive summary from scotusblog.com suggests that the mandate may have received a lift on Wednesday.
    “A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.”
It also details the three options the Court likely faces should the mandate fall: strike down all of the ACA along with the mandate; strike down only two care changes in the system; or strike down nothing but the mandate.

Once again, NPR provided a daily cheat sheet, which for day three primarily focused on Justice Antonin Scalia. Humorous, sarcastic and outspoken, Scalia provided several notable sound bites.

Meanwhile, this New York Times piece by Kevin Sack provides a smattering of “tea-leaf reading” from around the Web, as various commentators do their best to decode every word uttered by the justices and even interpret their tone.

In this piece from The Daily Beast, David Frum predicts that the ACA will prevail, and probably fairly easily. If so, he says Republicans will have some explaining to do.
    “…if the ACA is not rejected as ‘unconstitutional,’ the question will resurface: if you guys don't want this, want do you want instead?

    In that case, Republicans will need a Plan B. Unfortunately, they wasted the past three years that might have developed one. If the Supreme Court doesn't rescue them from themselves, they'll be heading into this election season arguing, in effect, Our plan is to take away the government-mandated insurance of millions of people under age 65, and replace it with nothing. And we're doing this so as to better protect the government-mandated insurance of people over 65 — until we begin to phase out that insurance, too, for everybody now under 55."
On the same site, Einer Alhauge argues that while it’s easy to blame U.S. Solicitor General Donald Verrilli for the health care law’s tough Tuesday, it all could have been different if the government had simply read a little Sun Tzu.
    “The health-care law’s challengers decided to frame this case as being about an unprecedented effort by the government to force the purchase of a product (in this case, health care) … In fact, the challengers’ claim is completely false. In 1790, the very first Congress (which included 20 framers of the Constitution, in case Justices Thomas and Scalia are counting), enacted a law requiring shipowners to buy medical insurance for seamen. The law was signed by another notable framer: President George Washington. Congress followed this with a 1792 law requiring all able-bodied citizens to buy a firearm, and a 1798 law requiring seamen to buy hospital insurance for themselves. Today, there are a host of affirmative federal duties to buy things. For example, federal law requires corporations to hire independent auditors, and requires unions to buy insurance bonds in case their officers engage in fraud. The list goes on.”
And for the second straight day, CNN’s Jeffrey Toobin said he believes the law will be struck down, describing the Supreme Court hearings as a “train wreck” for the Obama administration.

“This entire law is now in serious trouble. It also seems that the individual mandate is doomed.”

Democratic Whip Steny Hoyer took issue with Toobin’s statement, saying, ““I think this matter will be resolved — that the mandate is in fact constitutional and that this bill will go forward.”

As you can see, after three days of intense debate, one thing is perfectly clear … Okay, actually nothing is perfectly clear. Everyone still seems to be watching the events through their own filter and more than willing to declare their opinion as fact.

We don’t want you to be outdone, so it’s time to do hone your divination skills and weigh in. Is the individual mandate a goner? What about the rest of the bill? And what about President Obama? How large a role will the Court’s decision play in his reelection chances?