Van Hollen on health care arguments: 'I think things went very well today'

Van Hollen on health care arguments: 'I think things went very well today'

By Matt Montgomery & The Associated Press. CREATED Mar 27, 2012 - UPDATED: Mar 27, 2012

WASHINGTON- Tuesday's historic Supreme Court arguments on health care reform suggest that the court may be ready to strike down the provision requiring Americans to buy insurance or pay a penalty, according to the Associated Press.

Wisconsin Attorney General JB Van Hollen is in Washington for those hearings since Wisconsin is one of the 26 states challenging the law.

"I think things went very well today (Tuesday).  The reality is that almost everyone thinks this will be a 5-4 vote," said Van Hollen to Wisconsin's Afternoon News with John Mercure on Newsradio 620 WTMJ.  "Most people believe it's going to come down to the argument that was in front of the court today, which is the argument about the individual mandate and most people think it will come down to the vote of Justice Kennedy."

Justice Anthony Kennedy suggested the mandate "is a step beyond" what would be allowed under earlier Supreme Court cases.  He also said that allowing the mandate would "change the relationship" between the government and U.S. citizens. But at another point, he acknowledged the complexity of paying for America's health care needs.

The court has five Republican appointees: Chief Justice John Roberts, Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito; while the court has four Democratic appointees: Associates Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The court's four Democratic appointees appeared ready to uphold the requirement, according to the Associated Press.

There are four issues before the Supreme Court on the health care act: 

-Whether the Anti-Injunction Act prevents challenges to the Affordable Care Act

-The constitutionality of the individual mandate, requiring most Americans to purchase health insurance by 2014

-Whether the individual mandate is severable if it is found to be unconstitutional, or whether the entire Act would have to fail

-Whether the Affordable Care Act's expansion of the Medicaid program is constitutional

Van Hollen expects the Supreme Court to vote on partisan lines on the individual mandate issue in the health care act.  He said he wouldn't be surprised if there was a 9-0 vote in favor of Republicans on the Anti-Injunction Act; that act doesn't strike down the law -- it just allows the court to rule on it.

On the issue of severability and the issue of Medicaid and Coercion, Van Hollen says we could see something other than a 5-4 vote on those issues.

If the 5-4 vote is made in favor of Republicans on the individual mandate, Van Hollen says, "I think it effectively kills the measure."  Van Hollen notes that would the case unless the court decides the provision of the individual mandate can be removed from the law, via severability.  But if the court decides the law cannot stand without that provision, they could strike down the whole thing.

Van Hollen noted that the court could vote on the Medicaid issue on Wednesday, to determine if that is unconstitutional and if so, could it that provision be severed.

"The law is going to fail if either the individual mandate or the Medicaid provision is stricken," said Van Hollen.

"We left the court today with a lot more confidence than we walked into it with," said Van Hollen.  He told Wisconsin's Afternoon News that there was a lot of commentary and questions by justices to lawyers in Tuesday's hearing.  He noted the hearings process went smoothly and there was great decorum.

Van Hollen believes that the justices will know how they will vote on health care reform and won't be swayed too much by oral arguments.  "They've all read all the briefs, they've had clerks do all the research," said Van Hollen.  "What can have more of an impact is after it is all done and the justices sit down together, alone and discuss what their various positions are and how they intend to vote and have a chance to influence each other...I think this is where people are most likely to change their position."