In the second day of oral arguments, U.S. Rep. Michael Burgess got a “palpable” sense that history was being made in the chambers of the U.S. Supreme Court on Tuesday morning.
Today, the nation’s highest court is scheduled to finish three days of oral arguments about whether certain portions of the Patient Protection and Affordable Care Act of 2010 are constitutional. Burgess, R-Lewisville, used one of four tickets offered to the House Energy and Commerce Committee to attend Tuesday’s hearing.
The committee has jurisdiction over the U.S. Department of Health and Human Services.
The chambers were filled with senators, attorneys general and Cabinet members, Burgess said, all there to hear arguments about whether the individual mandate to buy health insurance is constitutional. That requirement of the health care reform law goes into effect in 2014.
Fairly soon into Tuesday’s hearing, Justice Anthony Kennedy questioned the attorney making the government’s case whether the mandate changed the relationship between the government and its people — and whether that change required a heavier burden of proof that such a mandate was necessary and proper.
Burgess expected the question to come up, but not from Kennedy, who is often a swing vote in the court’s decisions.
“I was surprised that he asked, and the amount of skepticism in his voice,” Burgess said.
Some news reports after the proceedings, based on Kennedy’s question and the skepticism of other justices, predicted that the individual mandate may be in trouble. Burgess called those predictions an over-interpretation, saying the individual mandate had about a 50-50 chance of survival.
Although many legal scholars believe the individual mandate will be upheld, Americans are divided in their opinion of the requirement. In poll results released Monday, the Pew Research Center found that 56 percent of Americans disapprove of such a requirement, although researchers found that opinions changed based on how the question was asked.
The health care law provides financial assistance for those who can’t afford insurance and outlines penalties for those who can — but don’t — purchase it. Those survey respondents who were told about the financial assistance last were more likely to favor the mandate than those who were told about the penalties last, researchers found.
In today’s oral arguments, the Supreme Court will consider the severability of the law — in other words, if the mandate is struck down, can the rest of the health care law stand separately?
Burgess won’t be in the chambers today, but he gives the whole law better odds of surviving that severability challenge. Should the mandate be struck down, and the rest of the reforms survive, health insurance companies will be in trouble, Burgess said.
“It’s uneven and treacherous ground,” he said. “Hurricanes in Texas are more predictable.”
He hoped this wasn’t a back-door way into a single-payer system, he said, adding that the government’s inability to pay its way now — underfunding Medicare and Medicaid — is a major cost-driver in the current system. Burgess had practiced for nearly 30 years as an obstetrician-gynecologist when he was elected to Congress in 2002.
If that split happens, he predicts a busy summer in Congress, although he believes it will take true bipartisanship to address the gap with legislative fixes.
“If it’s struck down, it shows that big, big things can be very difficult to do — it may be addressed better as five, seven or nine pieces of legislation,” Burgess said. “It’s not like there are no ideas out there.”
PEGGY HEINKEL-WOLFE can be reached at 940-566-6881. Her e-mail address is firstname.lastname@example.org .