Unless a closing oration by the government’s top lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights. It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act. It probably would be done by a 5-4 vote.
Solicitor General Donald B. Verrilli, Jr., and his principal adversary this week, Washington attorney Paul D. Clement, took turns as the final minutes of the third day of argument wound down to make a plea to the Court to think more broadly about their coming decision on not only the Medicaid expansion, but on another key piece of the ACA: the individual insurance mandate that the Court had explored on Tuesday. Verrilli edged toward the emotional, while Clement was crisp and blunt in making a final plea for the Court to sweep away all of the new law. They stepped back as the Court left the bench, to start the task — far from easy — or sorting through four profound legal or constitutional issues they had heard since Monday.Color me fairly surprised, yet again.