Single-payer Advocates Express Opposition to Individual Mandate

Update: Oral arguments during day three of the hearings have ended. According to the SCOTUS blog, "The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that ...The net effect may well have shored up support for the individual insurance mandate itself."

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Today the US Supreme Court hears the third -- and final -- day of oral arguments over the legality of the Patient Protection and Affordable Care Act of 2010, largely viewed as the most important legislative victory during President Obama's first term.

As the three-days of arguments have taken place, progressives have expressed opposition to the individual mandate -- a requirement that all who can afford to pay for insurance from private companies -- and are pushing for a renewed effort on a public, single-payer plan (see, here, here and here). Jon Walker, writing at FireDogLake, makes the argument that unlike with the individual mandate, "almost nobody disputes that single payer, such as Medicare for All, would be undoubtedly constitutional."

Today's argument is over the issue of "severability," or the prospects for the healthcare law to stay in effect, even if the court rules the individual mandate as unconstitutional. The individual mandate was debated in yesterday's session.

Many have argued that the government is facing tough odds after a tough day in court yesterday. President Barack Obama's Soliciter General, Donald B. Verrilli Jr., was widely panned for performing poorly by progressives and conservatives alike yesterday. The White House issues a statement defending his performance. Adam Serwer, writing in Mother Jones, said the Verrilli's argument "may go down as one of the most spectacular flameouts in the history of the court."

The court's five conservative judges -- Antonin Scalia, Clarence Thomas, Chief Justice John Robert, Samuel Alito and Anthony Kennedy (viewed as the swing vote of the court) -- asked difficult questions in yesterday's hearings about the legality of the individual mandate. The court's liberal wing -- Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan -- are seen as likely to accept the legality of the healthcare law.

The audio of the oral arguments can be heard here.

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Reminder: No One Disputes the Legality of Single Payer (FireDogLake):

With the Supreme Court arguing the legality of the Affordable Care Act, it is a good time to remember that almost nobody disputes that single payer, such as Medicare for All, would be undoubtedly constitutional. Even Michael Carvin, one of the lead lawyers arguing (for the non-state private opponents) that the individual mandate is unconstitutional admitted today that single payer would be clearly legal.

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Supreme Court divided over health care mandate (CNN):

In one of the most anticipated Supreme Court hearings in years, the justices on Tuesday offered sharply divided views on the controversial individual mandate provision at the heart of the 2010 federal health care reform law.

The fate of the individual mandate -- requiring most Americans to purchase health insurance by 2014 or face a financial penalty -- may be in jeopardy, and perhaps with it the entire law's other 450 or so sections, based on tough questions of the government by the court's conservative majority.

Jeffrey Toobin, CNN's senior legal analyst, said questions asked at oral arguments often show how justices are thinking, and based on what he heard Tuesday, the health care reform law could be in "grave danger."

Neither the justices nor the lawyers arguing before them mentioned "Obamacare"-- as opponents have labeled the law pushed through Congress by Democrats and President Barack Obama -- or the president by name.

But the court seemed fully aware of the landmark consequences of their eventual rulings.

"Those who don't participate in health care make it more expensive for everyone else," said Justice Ruth Bader Ginsburg, in support of the law. "It is not your free choice" to stay out of the market for life, she said.

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Obamacare's Supreme Court Disaster (Mother Jones):

Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism's biggest domestic accomplishment since the 1960s--and one that may well have doubled as its eulogy.

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On health-care hearing's last day, court weighs severability, Medicaid expansion (Washington Post):

The Supreme Court began the final day of its review of President Obama's health-care law Wednesday, considering whether all of the law must fall if part of it is found unconstitutional, and whether its proposed Medicaid expansion violates the federal-state partnership.

Paul Clement, a former solicitor general representing the 26 states that are challenging the law, argued that if its mandate for people to buy health insurance is declared unconstitutional, the rest of the health-care law must be rejected as well. Congress would never have adopted the law's other major structural reforms to the health-care system without the individual mandate, he told the justices.

But the justices questioned that logic.

Justice Antonin Scalia brought up one of the last-minute deal sweeteners that drafters of the law threw in to win the crucial vote of Sen. Ben Nelson (D.Neb.) -- a concession dubbed "the Cornhusker Kickback." If the court were to declare the kickback unconstitutional due to a constitutional prescription against "venality," Scalia posited, to titters in the courtroom, would the justices really have to strike the entire law on the grounds that the law could not have made it through Congress without it?

"That can't be right," he said.

The questions came a day after Scalia and other conservative justices expressed deep skepticism about the constitutionality of the individual mandate as they grilled the government's top lawyer, Solicitor General Donald B. Verrilli Jr., on the provision. On Wednesday, the third and final day of oral arguments in a case that has drawn demonstrators from both sides of the issue, it was the challengers' lawyer who was put on the defensive .

Clement repeatedly tried to make the case that key insurance regulations, which even the administration agrees would have to be struck along with the mandate, are central to the functioning of the law's other major features -- including the state-run "exchanges," or marketplaces , that the law establishes so individuals without employer-sponsored insurance can buy plans with government subsidies. Unless such people can be guaranteed acceptance by plans on the exchanges regardless of their health status, the law will fail in its goal of expanding coverage to them, said Clement.

Justice Elena Kagan seemed unconvinced. Exchanges "function perfectly well in Utah without a mandate," she said. "Is half a loaf better than no loaf?" she added. This "seems like the perfect example."

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