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SCOTUS-ACA Watch: Well, That Was Interesting

Posted by John McDonough  March 29, 2012 10:10 AM

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Some thoughts after three days of oral arguments before the U.S. Supreme Court (SCOTUS) on the Affordable Care Act (ACA).

First, we don't know what the full Court will do, and no one does. The air of confidence that ACA supporters brought into the room has evaporated. Some, such as CNN's Jeffrey Toobin, have now gone 180 degrees to pessimism. They may be right, but it's clear that the smart analysts just don't know. The DC Court of Appeals oral arguments on the law were considered a disaster for ACA supporters, and that court's decision ended up as a huge win.

The history of the ACA has been marked by premature death sentences, most notably on January 19 2010 when Republican Scott Brown won the U.S. Senate seat formerly held by Sen. Ted Kennedy, thus ending the Democrats' 60-seat Senate margin. I recall nearly every commentator, right-left-center, saying it was over, and deriding then-House Speaker Nancy Pelosi for her confident statements that health reform would pass. This moment, after the oral arguments, does not come close to the consternation of January 20, 2010.

Second, could someone explain to me how the U.S. Solicitor General, Donald Verrilli Jr., could have been so unprepared to defend the ACA? For goodness sakes, he was unprepared to answer the questions on broccoli and limiting principles -- two issue everyone knew would come up. This was clearly the most important moment of his distinguished career. Yet, as a supporter of the law, I feel like one of those criminal defendants who is ruined by incompetent representation. Sorry, Mr. Verrilli, but you blew it. And if this comes out OK, it's not because of your performance, it's in spite of it.

Third, in today's Washington Post, columnist E.J. Dionne puts it well: "Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee." Writing as a former staffer on the Senate Health, Education, Labor and Pensions Committee, he's right.

Witness Justice Antonin Scalia suggesting that if the individual mandate goes, then everything else in the law also falls apart. "My approach would say if you take the heart out of the statute," he said, "the statute's gone."

Really? If the individual mandate goes, how does that undermine the long-overdue reauthorization of the Indian Health Service? How does dumping the individual mandate undermine the vigorous new provisions to fight fraud and abuse in Medicare and Medicaid? Ditto penalties on hospitals with high rates of preventable hospital infections and readmissions? Ditto the expansions of community health centers and the National Health Service Corps. Ditto allowing young adults to stay on their parents' insurance plan? I've got a long list of these...

Scalia suggested forcing the Justices to go through the 904-page law would constitute cruel and unusual punishment: "You really want us to go through these 2,700 pages?" It's pretty clear from his comments that he has never even visited the ACA's table of contents (pages 1-12). He has no idea what else is in the law, and it's clear he doesn't care. He hopes four justices will join him as an alternative U.S. Congress. After similar performances in Bush v. Gore, and the Citizens United decisions, we cannot deny that he just might get away with it.

Let's repeat the familiar warning to our radical Republican Supreme Court justices -- be careful what you wish for because you just might get it.

PS -- first-rate commentary on the three days of hearings at the Health Affairs blog. Well worth it.

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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About the author

John E. McDonough is a professor of practice at the Harvard School of Public Health. He is the author of the book “Inside National Health Reform”, published in 2011 by More »

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