Kansas Attorney General Derek Schmidt said he was encouraged by questions raised today by the U.S. Supreme Court justices as they heard legal arguments in defense of the federal health reform law.
"I feel better about our position now than I did before the arguments occurred," Schmidt said during a joint telephone press conference with U.S. Sens. Pat Roberts and Jerry Moran, both Kansas Republicans.
Schmidt, also a Republican, was among those present as the justices held a second day of oral arguments in the case.
Kansas is one of 26 states mounting the challenge to the Affordable Care Act.
Justices today wrestled for two hours with the most controversial element of the law — the so-called "individual mandate."
The mandate — scheduled to become effective Jan. 1, 2014 — would require virtually all Americans who can afford health insurance to have it or pay tax penalties. The states argue that the federal government cannot compel individuals into economic activity, such as buying insurance, and then claim power to regulate that activity under the Constitution's commerce clause.
"It was very clear that a majority of justices, at a minimum, share our skepticism about the federal government's authority to enact the mandate," Schmidt said. "All of the conservative justices — with the exception of Justice (Clarence) Thomas were active in their questioning, the questioning was pointed. For some of us it was very heartening that particularly Justice (Anthony) Kennedy seemed to pick up a number of points that we've been talking about."
Thomas rarely speaks during court proceedings. Kennedy is often a swing vote on the court, which is composed of five Republican appointees and four Democratic appointees. Many court watchers consider him a barometer of how the court might rule.
Schmidt said that he heard the states' arguments against the law reflected in Kennedy's questions.
"Doesn't this mandate change the relationship between the federal government and our citizens?" Schmidt said paraphrasing Kennedy. "The fact that that was where Justice Kennedy chose to focus in his initial round of questioning suggested from my vantage point that he is very much focused on the types of concerns we have."
Washburn University law professor Bill Rich said the justices' questions didn't necessarily mean they would end up voting to overturn the law. He said nothing he had heard in the first two days of arguments had changed his mind that a majority of justices would vote to uphold the law.
“If they’re consistent with the reasoning that they have previously provided for us in other opinions, then it’s most likely they will uphold this law,” said Rich, who teaches constitutional law. “There hasn’t been a major piece of legislation like this struck down by the Court in the last 75 years. And so it would be a pretty radical departure, a clear case of activist judges striking down an act of Congress, if that were to happen.”
If justices only strike down the individual mandate and let the rest of the law stand, then Congress should start over, Moran said.
"If it's determined to be unconstitutional, then the Affordable Care Act — to whatever degree it's going to work — the whole theory behind it falls apart. Congress would have to start over," he said.
The lawyer for the federal government argued that without the individual mandate other provisions of the law are not viable — namely the requirement that insurance companies cover everyone, even those with pre-existing conditions. Without the mandate, people could wait until they are sick to buy coverage.
Beginning in the mid-1990s, the individual mandate was supported by some Republicans — including U.S. Senate Minority Leader Bob Dole — as an alternative to the health reform effort being lead by Hillary Clinton.