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Obamacare Oral Argument – Day 1

Obamacare Oral Argument – Day 1

This morning was the first day of oral argument in the Supreme Court on challenges to Obamacare.  The audio should be available in a little while.

Today was the issue of the Anti-Injunction Act, which arguably would prohibit court involvement if the mandate were viewed as a tax (something the Obama administration denied during the creation of the law, but now claims as a defense).

Via ScotusBlog, it does not appear that the Justices will buy into the administrations arguments, and will rule on the merits (caveat — oral argument questions and comments are not always a reliable indicator):

When Chief Justice John G. Roberts, Jr., commented at the end of Monday’s first day of hearings on the health care law, “We’ll continue argument on this case tomorrow,” it seemed to have a secondary meaning even if he did not intend it.   The comments and questions of the Justices during the 89-minute exchange left the distinct impression that they are prepared to rule on the constitutionality of the mandate that individuals must buy health insurance, and not push the issue off into the future.  The exact route they would take was a bit uncertain, but their skepticism about taking a pass was clear.

That did not mean, of course, that they would uphold the mandate.  That is tomorow’s question.  But an argument that at times seemed almost to bog down in the complexity of the tax code pointed toward a refusal to bar the lawsuits that had challenged the mndate and put it before the Court this week.

Updates: The transcript of oral argument is here.  The audio is here.


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That Anti-Injunction Act argument was pretty nimble thinking. It takes some disciplined thinking to get there. I hope SCOTUS decides that they will rule on whether the mandate, itself, is constitutional first and not the penalty.

    retire05 in reply to Ragspierre. | March 26, 2012 at 1:11 pm

    Rags, read your link. Why does it (jump out at me and) bother me that the Court, itself, appointed a private attorney to argue the case for the government. And not just any attorney, but Robert A. Long, Jr. of Covington & Burling.

    For those unaware, Covington & Burling is Eric Holder’s former law firm, and the same law firm that represented, pro bono, not only the Chinese Ughers who were released from Gitmo and deposited, per taxpayer dollars, on an island, but who have also represented, pro bono, more than one Gitmo detainee.

    Perhaps the Professor can explain to us why a private legal firm, and a private attorney, would be appointed to argue a case on behalf of the federal government when we have a plethora of lawyers who already work for the federal government and should be qualified to present the case from the government’s point of view.

      Ragspierre in reply to retire05. | March 26, 2012 at 1:21 pm

      First, retire, I dunno.

      Second, it COULD be because lawyers are not required…or even allowed sometimes…to argue positions that undercut their client’s position.

      You see several Obamic positions represented in the Court, some of which are openly contradictory.

      Contra the positions arrayed against ObamaCare, which I consider to be generally complimentary.

      That’s my guess.

        retire05 in reply to Ragspierre. | March 26, 2012 at 1:30 pm

        Rags, I understand that the government would not want to have a lawyer in court that could not argue the points of the AIA today, but to think that there is not ONE attorney employed at Justice that could represent the government’s stand in a positive way requires a willing suspension of disbelief. We can assume, with some certainty, that it was Justice lawyers that advised on the bill’s writing in the first place and those lawyers had already dealt with the issues that are now coming up and consequently, felt that the creation of the bill was within the legal constraits of the U.S. Constitution and stare decisis.

          Ragspierre in reply to retire05. | March 26, 2012 at 1:47 pm

          We may be arguing a moot point (since I’m speculating), but…

          ALLLL Executive Branch lawyers work for the same “client”

          Their client has adopted an argument to advance before the Court.

          Any argument that undercuts that prime argument CANNOT be advance by lawyers from the Executive Branch.

          To give you an idea how strong this principle is, I CANNOT represent a client taking a position adverse to one I have taken for a previous client…especially before an appellate court. It is an ethical violation.

          Awing1 in reply to retire05. | March 26, 2012 at 7:48 pm

          In addition to what Rags has said, Justice simply refused to defend it. The court appointed an attorney to decide it because their was a circuit split, one appellate circuit decided the AIA applied, while all the others decided it didn’t. The court wants to settle the issue, but neither party wants to advance it, and the court cannot decide an issue that isn’t argued by either party (that’s a very light cannot, because in many ways they have in the past)

      herm2416 in reply to retire05. | March 26, 2012 at 1:35 pm

      I agree! I sat straight up in my chair when I read the name of the law firm. Something else is afoot….

The Anti-Injunction Act, says courts can’t rule on the legality of federal taxes until they are imposed.

I heard commentary on CSPAN from someone who witnessed the arguments where Roberts said, today you will argue that its not a tax and tomorrow you will argue that it is.

ps its good to see the Tea Party Patriots fired up again.

i think the supremes should state it isn’t a tax. as a source, point to the guy who signed it.

nice little payback for the SOTU bs obama pulled.

You can also listen to Supreme Court Oral Arguments on Health Care on C-SPAN3.

Professor, what do you see as the most likely outcome, even if it’s not the overwhelming favorite? Individual mandate thrown out, not much else touched?

What would happen if SCOTUS did the unthinkable and (like citizens united on steroids) greatly rolled back modern jurisprudence all the way back to Wickard v. Filburn? What kind of impact would that have on the election this year? What about the laws currently on the books?

It’s a mandate.
No, it’s a tax.
It’s a mandate.
No, it’s a tax.

So, which is it – a floor wax or a dessert topping?

I am interested to see Justice Kagan’s (fingers and toes crossed email) written legal reasoning. My guess is it will sound like Laurence Tribe….including the word “flexibility”. I hope Prof. Tribe is aware that there is more “flexibility” after elections than election years.

“Harvard University law professor Laurence Tribe, who taught both Chief Justice John Roberts and Mr. Obama and was an Obama Justice Department official, said opponents are asking the court to erase the flexibility the Constitution’s framers gave Congress. If the court struck down Mr. Obama’s law, said Mr. Tribe, it would implicate “virtually every major piece of federal legislation enacted over the past several decades, and many laws now in the pipeline”—including proposals favored by conservatives.”

Howard Dean on what he expects the court to do.

My feeling is that he’s really saying what a segment of the Party hopes to see: Individual mandate held unconstitutional, but severable from the rest of the bill.

huskers-for-palin | March 26, 2012 at 11:57 pm

No mandate, the bill gets gutted as it loses is main money mechanism. Did the bill even have a severability clause? I’d heard that the demmies were in rush to get this bill passed after Brown was elected.

I wrote here that, if SCOTUS finds O’Care is constitutional, businesses are bracing for the worst in a number of ways:

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