The Supreme Court challenge to the health care reform bill should have been arcane and easy to work around. The media don’t think so. Whether they are correct, or not, no one will know until the end of June, when the Court publishes its majority opinion. But few expect that opinion to say that the health care reform bill stays within the Constitution.

Health care reform bill postmortem

The Wall Street Journal‘s editors said at the outset that this case, that everyone thought would be easy to decide, will not be easy. Michael Brendan Dougherty at Business Insider assembled a long list of “tweets” from Twitter about the Supreme Court’s oral arguments on the health care reform bill. At the top: Jeffrey Toobin, of CNN, who on Tuesday said that the arguments were a “train wreck” for the government. Yesterday he chose a more-extreme metaphor: “plane wreck.”

Another analyst, Philip Klein, quoted Justice Anthony Kennedy as saying that to try to sever the “individual responsibility mandate” from the rest of the health care reform bill would be more extreme than to declare the entire bill invalid. This is what Kennedy meant:

[This would] impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider.

That alone suggests that the mandate to buy health-care insurance will not stand. At least, this corroborates David Hogberg at Investors Business Daily. He said that the Supreme Court would rule that all of the health care reform bill should stand, or none.

Justice Antonin Scalia, according to Hogberg, summed up the problem best of all:

Can you give us a prior case … that resembles this one in which we are asked to strike down . .. the heart of the Act, and yet leave in … the rest of it? When have we ever really struck down what was the main purpose of the Act, and left the rest?

The government’s lawyer could not.

Adam Liptak of The New York Times said that the Court, yesterday, took up “the real-world consequences” of their ruling. Chief among them:

If you take out the heart of the statute, the statute is gone.

Did the Court prepare adequately?

Justice Antonin Scalia, United States Supreme Court. Photo: Steve Petteway, chief photographer (cropped)

Part of the problem is that the Justices did not prepare for their oral argument as well as they should have, in one critical respect. They never read the bill. Justice Scalia even said that reading the 2000-plus-page health care reform bill would break the Eighth Amendment.

Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?

(Laughter.)

And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks?

Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

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Tea Party activists Nick Purpura and Donald R. Laster Jr of Monmouth County, New Jersey, did read the bill. Purpura told CNAV that this task took six working man-days. Purpura did not completely fault Scalia or the Court for not reading the bill:

Nobody should expect the Supreme Court to do the job of the Congress, or the job of the parties.

Purpura went on to say that no one in Congress ever read the bill, either. But:

If they had read the bill, they would have been shocked to discover, as we did, the nineteen separate violations of the Constitution and applicable law. They would have known that this bill was a set-up for a single-payer system. This [health care reform bill] fixed it so that the insurance companies would never be able to compete, that employers would opt to pay the penalty rather than buy the private insurance. And the insurance companies would have no recourse, because the bill forbids any judicial review! Before you knew it, all the private insurance companies would be out of business, and everyone would be on the government’s plan.

Purpura and Laster filed their own lawsuit (Purpura et al. v. Sebelius et al.), addressing this and fourteen other points, including Congress’ authority under the Commerce Clause. The case died, ostensibly for lack of standing, an issue that Purpura disputes to this day. Purpura went on:

The Court would have realized something else, if they had read the bill: that the bill originated in the Senate. Remember that Judge Roger Vinson made that finding, which is in our brief. That one fact alone makes the bill illegitimate.

Purpura refers to Article I, Section 7, Clause 1 of the Constitution. It begins:

All bills for raising revenue shall originate in the House of Representatives.

Purpura also reminded CNAV that his original complaint lists every article, section, clause and amendment that the health care reform bill violates, along with every title and section of the United States Code that the bill conflict with, but does not specifically abrogate.

 What happens next?

The editors of Investors Business Daily guessed that the Court would scrap the entire health care reform bill. Kate Hicks at Townhall.com said that the only thing that might survive is the language telling the States to expand their Medicaid programs. Even that would not survive if the Justices decide not to try to parse the bill for parts that they could let stand, while they strike down the rest.

But Judge Andrew P. Napolitano (formerly of the Superior Court of New Jersey, Essex Vicinage) urged caution. He reminded his readers sharply that the Supreme Court set two precedents that let Congress expand its authority under the Commerce Clause. They involved:

1. Setting fees on the old ferry service from the Hoboken Terminal (long since discontinued, though the government is now renovating those ferry berths), and
2. Telling a farmer that he may not grow wheat on his own back lawn for his own family to eat.

The judge called on the Court to “backstop…this absurd progression of congressional power.” He also warned that if they did not, then Congress will be able to regulate everything that people do.

Related:

Supreme Court faces supreme test

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