The View from Inside the Supreme Court

An attorney who attended oral arguments on the health care reform law’s individual mandate in the Supreme Court on March 27 says the biggest surprise was the inability of Solicitor General Donald Verrilli, representing the government, to give a coherent explanation on the limits of congressional power.

The questions on congressional power had to be expected and Verrilli could not articulate a limiting principal, says Leon Sequeira, senior counsel at Seyfarth Shaw, a law firm specializing in employment law. If the mandate is overturned, the failure to articulate would be the biggest reason why, he adds.

Asked by Health Data Management for the best reason to believe the mandate will be upheld, Sequeira responds, “I have trouble giving you a good reason why they would uphold it.”

Sequeira is representing the National Restaurant Association, which filed a brief with the Court on the issue of severability. The association did not take a position on the individual mandate itself, but believes if the Court finds the mandate unconstitutional it must strike down the rest of the law. “If the mandate is struck and leaves the rest in place, that result actually exacerbates the problems Congress was seeking to solve,” he explains.

While Sequeira believes the White House did not have a good day on Tuesday, he says there still is a chance for the Obama Administration to get a fifth vote for the mandate on the nine-justice Court.

Justices Anthony Kennedy and John Roberts had very tough questions and comments, but Sequeira suspects they were testing the strength of the arguments presented to them. “The indication seemed to be that they were highly skeptical, but I wouldn’t say that means they will vote to throw it out.”

If there is a fifth vote, Kennedy remains the logical one, according to Sequeira. The speculation is that Roberts, the chief justice, would then join the majority so he could decide who writes the majority opinion.