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Health care law battered in three days of Supreme Court arguments

WASHINGTON — It would have been impossible for even the most faithful believer in the health care law to feel good descending the steps of the Supreme Court on Wednesday afternoon.

During three days of debate, the Patient Protection and Affordable Care Act was pushed, pulled and generally battered by a prepared, aggressive opposition and a majority bloc of conservative justices, leaving open the distinct possibility the whole thing could be sent to the trash heap in the heat of the presidential election.

"It's probably going to go down," sighed Louis Sorbl, a 22-year-old from Pennsylvania, who kept warm with an Obama 2012 hat as he stood in line outside the court, hoping to witness a few minutes of the proceedings.

This was not how it was supposed to play out.

From the minute the challenge was filed in Florida two years ago, legal experts on both sides predicted the high court would have a hard time finding constitutional holes in the centerpiece of the law, the mandate that Americans carry health insurance or pay a penalty.

But the weakness in the government's case — or at least its execution — was evident from the start of debate Monday when Solicitor General Donald Verrilli argued the penalty was not a tax but still slipped up and referred to it as such.

It drew good-natured laughter but foreshadowed Verrilli's struggles in the main event: the two hours of argument Tuesday over the individual mandate in which he struggled to articulate a justification for the mandate.

Several times it appeared liberal members of the court were trying to help him regain footing. "Tell me if I'm wrong about this, but I thought a major, major point of your argument was that the people who don't participate in this market are making it much more expensive for the people who do," Justice Ruth Bader Ginsburg said.

The rocky showing brought a storm of bad headlines and dire predictions, which ignored the significant work justices do behind the scenes and the extensive case law they will rely on before delivering a decision in late June.

In a sign of worry, a White House spokesman Wednesday noted the individual mandate idea began with conservatives during the last attempt at health care reform in the early 1990s. He said Verrilli delivered a "very solid performance."

Nonetheless, Verrilli seemed to fail to secure enough padding to avoid a close vote.

"We've been to a large extent vindicated no matter how the court rules," said former Florida Attorney General Bill McCollum, who initiated the challenge that was joined by 25 other states. (McCollum filed the suit seven minutes after President Barack Obama signed the bill into law on March 23, 2010.)

"At the beginning of all this, there were a lot of people saying, 'Oh that's a frivolous lawsuit.' I don't know how anybody who watched the U.S. Supreme Court in the last few days can say this is anything but a very substantive challenge."

The opposition received more encouraging signs Wednesday when some justices seemed to favor throwing out the whole law with the mandate rather than leaving parts intact, going against their liberal counterparts that a salvage job was better than a wrecking crew.

"My approach would say if you take the heart out of the statute, the statute's gone," said Justice Antonin Scalia. "That enables Congress to do what it wants in the usual fashion. And it doesn't inject us into the process of saying: This is good, this is bad, this is good, this is bad."

It's hard to imagine, however, a more gruesome and intractable situation than Congress trying to start over. Republicans and Democrats said some reform is needed but spent two years bitterly divided on how to accomplish that, and in the end not a single Republican voted for the Affordable Care Act.

Even if Democrats are able to recapture complete control of Congress after the November elections, which is doubtful, they may not have the stomach to attempt another overhaul. Many Democrats had to be dragged into supporting the legislation and even then were swept out of office in the 2010 midterm elections. Not to mention, there might not be a Democrat in the White House.

"If this effort flames out, it would be many years before there is a friendly political environment to return to health care reform," said Larry Levitt, senior vice president of the Kaiser Family Foundation.

The difficulty of handing Congress a "blank slate," as phrased Wednesday by Paul Clement, the lawyer representing the states, was readily acknowledged by the wild laughter that filled the courtroom when he went on to suggest that palatable parts of the law could be passed easily "in a couple of days."

"I mean, you can laugh at me if you want," Clement said, "but the point is, I rather suspect that it won't be easy. Because I rather suspect that if you actually dug into that, there'd be something that was quite controversial in there and it couldn't be passed quickly."

The law includes many provisions with overwhelming public support, including a prohibition on insurers barring access to people with pre-existing conditions. The Obama administration argued Wednesday that if the mandate is thrown out so too should the section covering pre-existing conditions because without the inclusion of millions of more healthy people in the insurance pool, costs would increase.

The court's decision will be a major force going into November. If the mandate is thrown out, it would be a dispiriting blow to Obama and provide momentum to Republicans. It would also alleviate an issue for Obama's likely rival, Mitt Romney, who saw through a similar mandate while governor of Massachusetts.

At the same time, it could spur Democrats to rally around another plan, but there was so much disagreement the first time over how to proceed and many liberals are still upset Obama did not push for a single-payer system.

A defeat for Republicans might have a similar effect (Romney's problem aside) and motivate the base in an effort to gain complete control in Washington and repeal the law.

For now, all anyone can do is speculate what will happen.

Alex Leary can be reached at Follow him on Twitter @learyreports.

Health care law battered in three days of Supreme Court arguments 03/28/12 [Last modified: Wednesday, March 28, 2012 11:08pm]
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