There’s a good deal of talk about how the oral arguments before the Supreme Court seemed to have gone badly for the government, particularly Solicitor General Verrilli, with a good deal of talk about how unprepared he seemed to make the arguments before him, but let’s be careful about two things: I’m sure Verrilli is an able attorney, but there’s no way to plaster enough lipstick on this pig to disguise its true nature, but more importantly, I don’t think we should take for granted anything about how this or any other court will rule based on their questions alone. If all the people who’ve spent the week trying to read the tea-leaves are wrong, we may be in for a serious disappointment come the end of June. For my part, while the questioning offered some measure of hope, I won’t count my chickens before they’ve hatched, or even count Obama’s before they have gone home to roost.
Listening to the media, you would think Verrilli had been the constant butt of jokes, and while it’s clear that there were a few laughs at his expense, I think this says more about the impertinent character of the Obama-care legislation than it says about Verrilli’s legal scholarship. He was placed in this position by a Congress now long gone, defeated and sent home by voters in 2010, and a President who was willing to sign this tract of tyranny into law despite a 2 to 1 disapproval by the American people at the time, that has only managed to worsen, now just shy of three-fourths of Americans considering the law unconstitutional. As any litigator will tell you, if you have his client with a smoking gun in hand over the dead body with a signed confession, and thirty eyewitnesses, you’re not going to make it far on the defendant’s claims of innocence, but as an attorney, if your client says he will plead not guilty, you must still stand in and defend him. That he’s left you with no conceivable method for doing so isn’t your fault, so I’d prefer we not tread too heavily on Verrilli. He may be a left-wing goon for all I know, but he was doing his job.
The question of severability on Wednesday seemed to cause the greatest stir from the leftist members of the court, because they wanted to find some way, any way at all, to salvage some part of the “Affordable Care Act.” One after the next, they tried to set up questions designed to muddy the water, but fundamentally, the problem is this: If the individual mandate is struck down as unconstitutional, the rest of the bill is eligible because it would be difficult to imagine how the exchanges and the rest of the complex structure of the law operates without the mandate provision. Some have assumed that the court may bounce the remainder of the bill, because Justice Scalia pointed out the impossibility of going through the law and figuring out what stays and what goes without risking larger damage. In other words, keeping some of the Act might well wind up causing more trouble than it fixes.
I think that’s the proper way to view it, and you might wonder in light of this why the liberals on the court are so intent on keeping such parts of it as they are able. The answer is simple enough once you understand their highly political motive: The mandate, if carved out, would merely affect the funding mechanism, but it would not do anything to the spending side. The spending would go on, and the Congress would face deficits even greater than those already envisioned with this irresponsible law, and the entitlement would become firmly rooted in the American culture. Once that happens, repeal becomes almost impossible. For the liberals, therefore, preserving as much as the bill by severing only the mandate becomes the object of the ruling.
The conservatives may not be inclined to tamper with any of it. They may not wish to toss out the entire bill for what will to some be an appearance of a political ruling, but the truth is that no matter what the court rules, it will certainly have political ramifications. The question is whether that matters to all of the justices. We know it drives the liberals on the court, but the problem is the conservatives are generally disinclined to weigh politics in their considerations on rulings. If that is the case, you could well see a bifurcated ruling in which they throw out the mandate but leave the entirety of the remainder in place. This too would constitute a disaster because the spending would commence in full as the law comes into force, with the revenue then [more] uncertain.
It could also happen that the court rules 5-4 that the mandate is constitutional, and if that happens, the country is thoroughly screwed. At that point, the whole severability question is moot, and the law is implemented on schedule. Of course, there are many theories about how this may play out, but the fact remains that we won’t know until late June. Liberals are preparing for the scenario in which some or all of the law is tossed by preemptive strikes in media against various justices, particularly Justice Scalia. I expect those attacks to ratchet up, even though the voting is already complete, and all that remains is to write the ruling and publish.
This process is important to the function of our republic, and yet there are those who disparage it as anachronistic, but I believe that if we are to remain a nation of laws, we must give the process its due. Leftists want to know the ruling now, and you can bet every court clerk is being prodded for answers by media who want to know in advance. I would urge conservatives not to become to happy over what they have heard and read from the oral arguments. Politically, you should remain engaged as though the law is going to be upheld. You won’t be surprised if it is, and you won’t wonder about what to do next.