If Tuesday's oral arguments before the Supreme Court were a reality check for the Obama administration and its hopes for its health-care overhaul, Wednesday's session may have been the day that dreams were shattered.
A close reading of the arguments would seem to suggest that the tide of battle, for the Obama administration at least, had worsened.
Too many inferences sometimes are drawn from the tenor of the back-and-forth bantering between Supreme Court justices and lawyers arguing their cases. The justices sometimes take what seems to be a hostile approach and then issue opinions that contradict statements from the bench.
But the tenor of the colloquy can be predictive - especially when the justices step out of their probing, Socratic role and seem, as they did both Tuesday and Wednesday, to stake out positions.
That's why Wednesday's arguments might have been particularly meaningful.
On Tuesday, when the court considered the constitutionality of a central pillar of the Patient Protection and Affordable Care Act - its requirement that all nonexempt individuals carry insurance - it appeared as if there were a five-vote majority composed of conservative jurists to strike the mandate.
By the time Wednesday rolled around and the justices got into it with Deputy U.S. Solicitor General Edwin Kneedler on the question of whether the whole act had to go if the insurance mandate were chucked, it seemed evident the conservative majority also was seriously considering tossing the entire 2,700-page law.
That's important because it lent weight to the impression that they were troubled by the insurance mandate as too broad an extension of federal power. But also because there is far more in the law than just the mandate.
There is a huge expansion of the Medicaid program; the joint state and federal program for covering the poor; a requirement that insurers permit parents to carry adult children on their policies through age 26; and a requirement that states set up insurance exchanges where individuals and businesses can shop for health insurance, comparing prices and coverage.
Justice Antonin Scalia, a son of Trenton, was the most vocal, even uninhibited, conservative voice, deftly sprinkling abstruse legal argument with street idiom, at one point describing a promise of Medicaid funds to former Nebraska Sen. Ben Nelson, his price for voting for the bill, as the "cornhusker kickback." Scalia's claim was that the court couldn't pick and choose provisions that might survive. It was either all or nothing.
"Mr. Kneedler, what happened to the Eighth Amendment?" Scalia asked. "You really want us to go through these 2,700 pages? Is this not totally unrealistic? That we are going through this enormous bill item by item, and decide each one?"
Scalia is a bit of a jokester, has a habit of playing to the crowds, and is a predictable conservative vote, so his commentary was unsurprising. More troubling for the Obama administration were the reflections of Justice Anthony Kennedy, the court's so-called swing vote, and even Chief Justice John G. Roberts Jr., once also thought to be a possible vote for upholding the law.
Roberts spent part of the morning Wednesday pointing out that many of the complex elements of the bill probably had been the price of obtaining members' votes and that, without them, it likely would not have passed. He suggested that if the court's role was to determine congressional intent, the package was so inextricably intertwined that it might be impossible to unpack.
A short time later, Roberts suggested he had trouble imagining how, if the court struck down part of the legislation, Congress or the courts could fix what remained.
There was a particularly telling moment when Kneedler, in a pitch to the court's conservatives, suggested they show "judicial restraint" by striking only those provisions they found unconstitutional, and leaving the rest.
Kennedy poured cold water on that argument. He noted that the purpose of the insurance requirement was to spur uninsured Americans, many of them young and healthy, to buy coverage. That would help offset rising costs caused by requiring insurance companies to cover sick people and banning the companies from basing rates on health conditions. If the insurance mandate were removed from the bill, but the other requirements remained, Kennedy said, there would be chaos.
"We would have a regime that Congress did not provide for, did not consider," Kennedy said. "That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than ... striking the whole."
Later that day, the conservatives voiced further skepticism about the constitutionality of the proposed expansion of Medicaid. The law calls for providing coverage to those with incomes of 133 percent of the federal poverty level, adding 16 million in all, people who earn too much to qualify for the program, but too little to afford insurance on the private market.
Twenty-six states, including Pennsylvania, have challenged that provision, along with the rest of the law, arguing that it is coercive because they risk losing all their Medicaid money if they don't accept the program's expansion. The conservatives, apart from Clarence Thomas - who rarely poses questions during oral arguments, but is a reliable conservative vote - seemed sympathetic.
All this tea-leaf reading has its risks, as Temple University constitutional-law professor Robert Reinstein pointed out, because the justices might be playing devil's advocate in asking tough questions, or they might change their minds.
One irony, though, is that there likely would have been no case at all had Congress decided to fund the program with a tax, rather than requiring people to carry private insurance as a means of getting additional money into the system. That would have been politically perilous for the Democrats, who pushed the plan through Congress. Americans don't like new taxes. But had it been a tax, Reinstein said, the Obama administration would have beaten back the legal challenges hands down.
Of all its powers, the federal government's authority to tax is legally bulletproof.
Contact Chris Mondics at 215-854-5957 or firstname.lastname@example.org.