A close vote, no matter which way the case goes

Justice Kagan started off the questioning of Paul Clement with a very practical and powerful observation about the ACA’s expansion of Medicaid to provide millions of needy Americans access to health care: Why would the states feel coerced when the federal government is giving them “a boatload” of federal money to spend on “poor people’s health care”? Justice Ginsburg followed up with the trenchant observation that, in fact, many states and state leaders (including the more than 500 state legislators from every state in the country, whom I represent) support the Medicaid expansion and, rather than feeling unconstitutionally coerced, think the expansion is a great deal for the states and their citizens. While the ACA’s Medicaid expansion is an unquestionably generous deal for the states, it nonetheless remains true that states are free to turn down the “boatload” of money the federal government proposes to give them to expand Medicaid coverage-Texas governor Rick Perry has publicly considered it-even if to do so would likely incur the displeasure of their constituents. But that’s basic political accountability, which Justice Kennedy, in particular, appeared concerned with. 

Of course, there were tough questions asked of both advocates during the Medicaid argument. Indeed, over the past three days, the justices have asked tough questions of both sides. But in the lower courts, conservative Judge Silberman in the DC Circuit and former Scalia clerk Judge Sutton in the Sixth Circuit also asked difficult questions of both sides, before ultimately voting to uphold the ACA and its minimum coverage provision. It’s pretty clear that, whichever way the case goes, it will be close. Chief Justice Roberts and Justice Kennedy seem to be in play for both sides. 

Chief Justice Roberts’ professed desire for “judicial restraint” should push him closer to the side of the Administration (although sometimes Roberts’ commitment to restraint seems to be MIA, as we saw in Citizens United). As Verrilli made clear with his powerful closing remarks, if the Court does strike down the Act, it will mark a radical shift in the Constitution’s governmental structure, in which the courts defer to the policy choices made by the democratically elected representatives of the people. At times, some of the justices-notably Justice Scalia-appeared to let their politics get the better of constitutional text and precedent. But as several of the justices affirmed over the course of the arguments, the courts are not authorized to sit as a “mini-Congress,” second-guessing whether a law is good or bad policy. The Court’s job, as Verrilli emphasized in his final remarks, is to apply the Constitution and recognize the broad powers given to the federal government by our Founding charter, which squarely support the constitutionality of the healthcare reform law. If people (including private citizen Antonin Scalia) don’t like the Affordable Care Act, their recourse is at the ballot box, not in the courts. —Elizabeth Wydra, chief counsel, Constitutional Accountability Center