Harry Reid disputes court is sympathetic to health care law opponents

By Karoun Demirjian

Tuesday, March 27, 2012 | 6:31 p.m.

The Supreme Court isn’t expected to render its decision on the health care law until June. But few, especially among those who would like to see the law overturned, could restrain themselves from trying to predict the verdict Tuesday, after the justices heard arguments on constitutionality of the health care mandate — the central issue of this case.

“I think questions by all the justices clearly showed that they share our same concerns,” Attorney General Pam Bondi of Florida, which is leading the 26 states, including Nevada, said in bringing the lawsuit.

“I’m reasonably confident ... [the court will decide] this is beyond Congress’ commerce clause power,” said Republican Sen. Mike Lee of Utah, who watched the proceedings in the courtroom Tuesday and added that he noticed “very genuine skepticism” from one swing justice about the government’s argument.

“This law looks like it’s going to be struck down,” independent analyst Jeffrey Toobin then declared on CNN, leading Democrats to move to throw water on the celebration.

“The questions you get from the judges doesn't mean that's what's going to wind up with the opinion,” Sen. Harry Reid said Tuesday, reminding reporters of the time he’s spent trying cases in federal court. “You cannot base what the court is going to do an oral argument. It’s nice. It’s good to speculate as to what might happen. But believe me, those nine men and women are extremely smart, and a lot of times they probe with those questions, not in any way to tip their mitt as to how they’re going to vote on it.”

The Supreme Court isn’t like most other courts: Justices routinely interrupt lawyers to pepper them with questions, point out flaws in their arguments and satisfy their doubts about the case. That banter lends itself to speculation about how the justices are forming opinions.

The mandate question is central not just to the lawsuit but also to nearly every political argument over the health care bill in its two years of existence. In the Nevada delegation, Democrats who supported the law and Republicans who opposed are continuing to lock horns over health care in anticipation of the 2012 election.

While the country’s highest court is a chamber where the law reigns supreme, it’s impossible to check politics at the door — even if the police did keep the throngs of pro- and anti-health care demonstrators at bay on the front steps.

The nine justices on the court are more or less split into two factions. The more liberal members include Justices Ruth Bader Ginsburg and Stephen Breyer, both Clinton appointees, and Sonia Sotomayor and Elena Kagan, both Obama appointees. The more conservative members include Justices Antonin Scalia, a Reagan appointee; Clarence Thomas, a George H.W. Bush appointee; and Samuel Alito and Chief Justice John Roberts, both George W. Bush appointees. Justice Anthony Kennedy, a Reagan appointee, is usually considered the swing vote.

In Tuesday’s proceedings, it was impossible not to notice a split among the justices as they popped their questions that seemed to pull Kennedy over to the conservatives’ side.

“When you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” Kennedy asked U.S. Solicitor General Donald Verrilli.

He later reiterated his view that the health care law “changes the relationship of the federal government to the individual in a very fundamental way.”

Under the Constitution, the federal government — Congress specifically — has the right to regulate interstate commerce.

But to have commerce, you have to have a market — and the government and the states are at odds over whether the health care market is, in fact, broad enough to include all people that would be affected by the individual mandate.

The states say no — putting the mandate beyond the authority of Congress to regulate interstate commerce.

“The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce,” said Paul Clement, lawyer for the 26 states bringing the suit.

“Our test is really very simple: Are you buying the product or is Congress compelling you to buy the product?” asked Michael Carvin, lawyer for the National Federation of Independent Businesses, which joined the states in their suit.

But the government says yes — because everyone will need health care, and thus everyone is already part of the health care market they’re trying to regulate.

“The distinguishing feature of it is that ... people cannot generally control when they enter that market or what they need when they enter that market,” Verrilli said. “The point of difference between my friends on the other side and the United States is about one of timing. ... This is not a market in which you can say that there is a immutable class of healthy people who are being forced to subsidize the unhealthy. This is a market in which you may be healthy one day and you may be a very unhealthy participant in that market the next day.”

The more liberal justices appeared to be in lockstep with the government’s argument.

“If we look back into history, we see sometimes Congress can create commerce out of nothing,” Breyer said, citing the example of the national bank. “Here, we have a group of 40 million [uninsured]. ... We just want to rationalize this system they are already in.”

“If you were up here saying, I represent a class of 20 Christian scientists, then you might be able to say, 'Look, you know, why are they bothering me?'” Kagan said. “But absent that, you’re in this market. You’re an economic actor.”

But the more conservative members seemed decidedly with the states.

“You’re regulating somebody who isn’t covered,” Scalia said to Verrilli. “You’re not regulating health care. You’re regulating insurance. That’s different from regulating in any manner commerce that already exists out there.”

If the court does split along traditional political lines — something that seems likely, given that of the conservative justices, only Roberts asked tough questions of the lawyer representing the suing states — the decision would come down to Kennedy.

Kennedy appeared Tuesday to have the least well-formed opinion of the case. He expressed concerns about the changing nature of an individual's relationship but also seemed confident that individuals — even those who don't buy health insurance — are an "actuarial reality" of the health care market.

And of all the justices, he wondered most openly about the option of a single payer system — something that lawmakers laid aside long ago as they negotiated the health care law but that as a tax-based system, would have avoided many of the constitutional issues at play Tuesday.

"I'm not sure which way it cuts," he said . "How does that factor into our analysis?"

The Supreme Court will consider the oral arguments along with thousands of pages in briefs filed, not to mention the thousands of pages that make up the law itself, to reach its decision by June.