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Can Obamacare Win by Losing at Highest Court?

• March 27, 2012 • 6:30 PM

Might Obamacare’s poor showing today at the Supreme Court offer a silver lining for those who favor expanded access to health care?

As day two of the U.S. Supreme Court’s epic three-day examination of the Patient Protection and Affordable Care Act (AKA Obamacare) came to a close, the general consensus — from left and right–seems to be that the government’s lawyer failed to convince any of the five right-of-center justices to uphold the individual mandate alongside the court’s four left-of-center justices.

The contrast between Paul Clement’s sterling performance challenging the mandate and the pointed questions from justices that marred Solicitor General Donald Verrilli’s stumbling defense (here’s a funny but brutal edit of the his performance) gave both sides of the aisle plenty to cheer or hyperventilate about. The New Yorker’s Jeffrey Toobin, speaking on CNN, went so far as to call the day a “train wreck” for the Obama administration.

So is it time for supporters of the healthcare overhaul to abandon hope and revisit the Government Accounting Office’s comprehensive survey of experts for alternatives to the mandate for encouraging enrollment?

Not necessarily.

Perennial swing-vote Justice Anthony Kennedy offered glimmers of credulity regarding the constitutionality of requiring Americans to buy private health insurance near the end or Verrilli’s argument. And it’s true that oral arguments are only a small piece of the Supremes’ decision-making process. It’s also been reported that Chief Justice John Roberts considers the legacy and legitimacy of his court carefully; as Washington University at St. Louis professor James L. Gibson wrote for us yesterday, the court’s legitimacy is conflated with its Obamacare ruling.

Nevertheless, whereas legal and political analysts worked themselves into frenzy this winter over the “case of the century,” in terms of policy, today may have mattered less and even offered further hope for proponents of universal health care, or for a single-payer system that guarantees coverage to all. My former New Republic colleague (I use the term loosely since he is light-years ahead of me in his expertise on all things health-care—and Red Sox—related) Jonathan Cohn reported a tepid reaction from the press room at the Supreme Court, and gleaned this interesting nugget from a leading scholar in attendance:

Walter Dellinger, the Duke law professor who supports the law, pointed out that the plaintiffs [Clement’s team] effectively made it clear that the only way to create national health insurance would be through a single-payer system, an idea most conservatives detest.

One early exchange between Verrilli and the chief justice featured John Roberts following a similar line of logic related to a single-payer system. The solicitor made the argument that “people cannot generally control when they enter that market or what they need when they enter that market,” prompting this response from Roberts:

Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. … So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?

In that analogy, health care is to police, fire, and ambulance what health insurance is to a cell phone. It’s an interesting counter for Verrilli to have to parry, since his boss Barack Obama and many on the left initially opposed the mandate, and many on left in another day and age might have agreed with Roberts that health care is analogous to police and fire—a public good that is best provided by the government, since it’s a service everyone requires.

Roberts echoed this point later in his reminders to the plaintiffs that the government’s case revolves around the idea that health care is not like other products, such as wheat or mortgages (which they held up for comparison).

Dellinger’s observation, and Roberts’ point, hint at a line of thinking lost this week amidst the zero-sum view that says if SCOTUS kills the mandate, then Obamacare and ultimately universal health care are dead: In a post-employer and -individual mandate world, a robust public option may be the only recourse left for any administration that should seek a comprehensive solution to the health care system’s exploding costs and diminishing access.

Many have made this point since the Supreme Court agreed to hear the case, including Mark Pauly, the conservative scholar who first conceived of the individual mandate. (He conceded as much during a recent interview in response to a question about the nation’s options for addressing diminishing coverage and exploding costs after so many market-based solutions.)

And today, one of the highest sitting conservative judges made the rhetorical and logical leap that the left wants America to make–even hinting at his possible rationale for his upholding the mandate (but I’ll defer to legal experts who see only a slim chance of that).

Michael Fitzgerald
Michael Fitzgerald is an associate editor at Pacific Standard. He has previously worked at The New Republic and Oxford American Magazine.

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