Life Support

It couldn't possibly happen. All of the indications leading up to the Supreme Court's hearing of the health care case was that enough justices in the conservative wing of the Court would see the value in the individual mandate for Americans to buy health insurance - a Republican idea, after all - and uphold the health care law . . . but, if not, the Obama administration could always count on Anthony Kennedy to save the day.

Then Solicitor General Donald Verrilli, arguing for the White House, ruined everything by opening his mouth.

According to Sam Stein of the Huffington Post, Verrilli stumbled so badly yesterday in making the case for the individual mandate that the conservative justices shot it full of holes by asking tough, carefully constructed questions. The argument that the mandate gives more people access to health insurance and that increased access to such coverage, which everyone needs, makes everyone better off wilted in the realm of the forceful questioning the conservative justices threw out.

Verrilli tried to make the case that the commerce clause in the Constitution authorizes Congress to regulate interstate commerce and has justified the expansion of government programs that affect commerce. The conservatives shot back against the idea of an all-powerful, unfettered government intrusion into essential services by citing hypothetical examples. Chief Justice John Roberts opined that this could give the government the right to make Americans buy cell phones for greater access in case of emergencies. Justice Samuel Alito wondered if that meant burial insurance could be mandatory because everyone is going to die. And Antonin Scalia said the government could conceivably force people to buy healthier food, like broccoli. Yes, for the first time since the senior George Bush - who hates broccoli - was President, broccoli eating is once again a political issue!

Even Justice Kennedy, whose support for the mandate had been deemed likely, expressed concern about changing the relationship of the individual to the government in "such a unique way." As far as I can make out, Justice Clarence Thomas, in keeping with his own personal tradition, said nothing.

How badly did Verrilli handle himself? According to Stein, he fielded such skepticism so badly and so maladroitly that the Court's liberal wing had to help him finish his sentences! Did Verrilli think the Supreme Court was on Sesame Street? The liberal wing's own skeptical questions to the lawyers challenging the health care law were so irrelevant to the conversation that I needn't bother talking about them. This is a first for me - I'm showing an anti-liberal bias by being indifferent to liberal arguments! The health care law is in that much in trouble.

(Although, to be fair, I will admit that Justice Stephen Breyer made himself useful, responding to the argument that the government could force people to buy cars just because they need them by stating that the need for cars in the whole state of Wyoming is obviously different from the lack of such a need in New York City. In fact, Breyer's comments only reminded people of how the federal government does force people to buy cars because of its decades-long antipathy to public transit. But Justice Breyer didn't give anyone a reason to be for the health insurance mandate. He give everyone a reason to be against an autocentric federal transportation policy.)

With the health care law now likely to be overturned entirely or gutted enough to render it neutered, President Obama will go into the fall presidential campaign having to explain why he spent so much time and effort to push a law that not enough Supreme Court justices would uphold and no one liked. Likely Republican nominee Mitt Romney's hypocrisy in attacking the law when he signed a similar law as governor of Massachusetts will no longer matter. And it could be a decade before Congress has to start over and try to reform health care yet again - which is fine for the Republicans, because they have no plans to do so.

And if you think this will embolden the cause for a single-payer system, you don't need to worry about how to pay for drugs. You're obviously already on them.

James Carville actually thinks an overturning of the law would help the Democrats, because Obama can say he tried to reform health care and he can insist, as a constitutional law professor, that he thought the law was sound, and that people can blame the Republicans and the conservatives on the Supreme Court for rising health care costs in the short term. I don't think so. When polled on what issues they consider the most important, not too many people list health care as their number one issue. The fifty million or so Americans without health insurance represents only one-sixth of the U.S. population.

And, as Ronald Reagan might have said, just remember - for every American without health insurance, there are five of us with coverage.