Republicans and Democrats in Congress said they saw signs of eventual victory as the U.S. Supreme Court finished the second of three days of arguments on the health-care overhaul that cleared Congress on party lines.
On the Capitol lawn after yesterday’s session, Republican leaders who oppose the 2010 law said their observation of the justices gave them reason to hope the court will strike down the law’s mandate requiring Americans to obtain health insurance or pay a penalty.
Kentucky Republican Mitch McConnell, the Senate minority leader, said it was noteworthy that the four Republican-appointed justices who spoke peppered the Obama administration attorney defending the law with questions, while four “more liberal” members of the court were directing their queries mostly to the plaintiff’s side. Justice Clarence Thomas, a fifth Republican appointee, said nothing, as is his practice.
“What that leads to, we don’t know, but we know that the suspense will be over in June,” when the nine-member court probably will rule, McConnell said. He reiterated that if the health-care law survives the court challenge, Senate Republicans will repeal it if they win control of the chamber in the November election.
‘Good to Speculate’
Senate Majority Leader Harry Reid, the Nevada Democrat who muscled the measure through the Senate with all 60 members of his party and the opposition of every Republican then serving, said it’s unwise to predict outcomes based on the court arguments. He said he’s confident the law, designed to expand health coverage to 32 million more Americans and control soaring costs, will remain intact after justices rule on the constitutionality of the individual mandate.
“It’s good to speculate as to what might happen,” Reid said. “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.”
The court hasn’t overturned a measure of such significance since the 1930s, when it voided parts of Franklin D. Roosevelt’s New Deal.
As lawmakers tried to discern the possible outcome of the case, the scene across the street at the Supreme Court building underscored the stakes for both parties as the election approaches.
At the court, hundreds of protesters on both sides rallied, although the group was dominated by the Republican-leaning groups that oppose the law and will help get out the vote for the party this fall. Some carried “Don’t Tread on Me” flags and chanted, “Hey, hey, ho, ho, Obamacare has got to go.”
Rallying the Right
By afternoon, the opponents organized by Americans for Prosperity outnumbered supporters of the health-care overhaul. Republican Representative Michele Bachmann of Minnesota and Senator Rand Paul of Kentucky spoke against the law, urging opponents to call their members of Congress.
Some opinion surveys show that the public is skeptical as to whether the justices can keep politics out of their decision-making. A Bloomberg News National Poll earlier this month found that three-quarters of Americans say the Supreme Court will be influenced by politics when it rules, probably in June, less than five months before the presidential election.
The sentiment crosses party lines and is especially held by independents, 80 percent of whom said the court won’t base its ruling solely on legal merits. More Republicans than Democrats, by 74 percent to 67 percent, said politics will play a role.
‘Up for Adoption’
At the Capitol, some Senate Democrats pointed out that Republicans were proponents of an individual mandate for health coverage during the 1993 debate over a health-care overhaul.
“The Republicans were fathers of the individual mandate, now suddenly they want to give it up for adoption on the steps of the U.S. Supreme Court,” Charles Schumer of New York, the Senate’s third-ranking Democrat, told reporters.
Senate Judiciary Chairman Patrick Leahy, a Vermont Democrat who attended the arguments yesterday, said a ruling that the individual mandate was unconstitutional might have implications for other government programs.
“Tomorrow something could come and impact Social Security for the same reason, and that would be unconstitutional,” Leahy told reporters. “Or, people like myself, who buy insurance, but also have to pay for Medicare, well, we could say Medicare is unconstitutional.”
Senator Tom Harkin, an Iowa Democrat, said he was confident that opponents of the law were basing objections “on politics rather than precedent.”
“I am convinced, after listening to the two hours this morning, that this court can go no other way but to uphold the individual mandate that the Congress has put in the Affordable Care Act,” Harkin told reporters.
Signs of Doubt
Utah Republican Senator Mike Lee, speaking outside the court after the argument, said in his view, Justice Anthony Kennedy’s questions reflected doubts about the constitutionality of the coverage mandate.
“Based on the questions he asked, his demeanor, his body language,” Lee said he thinks Kennedy “was leaning toward the conclusion that the individual mandate is unconstitutional.”
Lee, who was a clerk for Justice Samuel Alito when the justice was a federal appeals court judge, said his former boss seemed “not just somewhat, but significantly skeptical” of the government’s case.
Republican leaders at their news conference were flanked by state officials who were taking the lead in the court challenge.
Pam Bondi, Florida’s Republican attorney general, said it’s more likely than not that the states challenging the law will prevail.
“We feel very confident,” she said. “We feel very pleased with the questions the justices have been asking.”
Nebraska Attorney General Jon Bruning, also a Republican, said as is often the case, Justice Kennedy will be pivotal and the questions he asked appeared to reflect long-standing views that there are limits to Congress’ constitutional power to regulate interstate commerce.
“He’s very skeptical of unlimited congressional power under the Commerce Clause,” he said.