The third and final day of Supreme Court hearings on the constitutionality of the Affordable Care Act Wednesday saw the conservative majority dancing around the details of completely overturning it, teeing up the first major invalidation of a social program by the high court since the New Deal in the 1930s.
Paul D. Clement, the lawyer representing the 26 state attorneys general and the coalition of business groups challenging the law, made the case that if the individual mandate to purchase health insurance is found unconstitutional — which Tuesday’s hearing suggested is quite possible — the entire law must be struck down.
Most of the justices were receptive to that argument, apparently annoyed by the potential nightmare of sifting through the 2,700 page bill and determining line by line what could stand on its own.
“One way or another, Congress is going to have to reconsider this,” said Justice Antonin Scalia, appointed by Ronald Reagan. “Why isn’t it better to have them reconsider it in toto?”
What’s more, the Court — including “swing” justice Anthony Kennedy — took a deeply skeptical view of the law’s expansion of Medicaid, which is almost entirely paid for by the federal government.
“Why shouldn’t we be concerned about the extent of authority that the government is exercising, simply because they could do something less?” Chief Justice John Roberts said, suggesting the expansion of Medicaid was coercive.
As usual, Clarence Thomas, appointed by George H.W. Bush, asked no questions, though he is seen as nearly certain to vote to strike down the legislation. And just as they did on Tuesday, the court’s liberal minority, led by Ruth Bader Ginsburg, a Bill Clinton appointee, sought to bolster the Affordable Care Act with a sympathetic line of questioning.
“Why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job?” Ginsburg asked of Clement. “The more conservative approach would be salvage rather than throwing out everything.”
The oral arguments having concluded, the justices will retreat from the spotlight before issuing a ruling in June. Whether they proceed to strip Americans of new consumer protections and financial assistance — perhaps the most tangible thing President Obama has given them — in the thick of a presidential campaign remains to be seen.