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Obamacare Oral Argument, Day 2 – The Mandate

Obamacare Oral Argument, Day 2 – The Mandate

Tom Goldstein at ScotusBlog has an interim report:

Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble.  It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli.  On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions.  Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden.  At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.

Side note: Paul Clement was the attorney chosen by the House to defend DOMA when the Justice Department reversed its position, resulting in the threats against his law firm King & Spalding, causing Clement to leave the firm.

Lyle Dennison has this (predictable) post-argument assessment, It’s Kennedy’s Call:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience took a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature.

Update:  Transcript, Audio.

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Comments

StrangernFiction | March 27, 2012 at 12:27 pm

At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito.

A 6-3 vote to uphold? I’ll take that bet.

I actually think this will be a 6-3 or even 7-2 vote that the mandate is unconstitutional. I think the 5-4 vote will be on the severability. And I don’t know which way it will come out.

Look at Bush vs Gore. It was a 7-2 vote that the recounts were violating the 14th Amendment. The vote that was 5-4 was on if they should continue. (Which means that 2 Justices thought they were unconstitutional but were ok with them continuing)

“All of the predictions, including mine, that the justices would not have a problem with this law were wrong.”
—Jeffery Toobin

Heh…!!!

Not being a lawyer or having a strong knowledge of Constitutional legal history I can only base predictions on what I see as overwhelming evidence of this country’s increasingly corrupt, degraded and cowardly institutions and ruling class. As such, I predict the mandate and law will be upheld, and that this issue will return to the political process and to where the ultimate salvation of this country will rest — with American citizens, i.e., with people who remember what being an American citizen really means. We either have the numbers and will to save ourselves or we don’t.

    Ragspierre in reply to raven. | March 27, 2012 at 1:25 pm

    Remember Prohibition?

    Just say no.

    WoodnWorld in reply to raven. | March 27, 2012 at 1:28 pm

    This comment, particularly coming from raven, actually gives me added hope that when this is all over with at least some part of the health care law will be struck down.

    I say this because, in the months I have been keeping score with raven’s gut reactions, his/her political/primary-related predictive powers have been proven eminently fallible.

      Ragspierre in reply to WoodnWorld. | March 27, 2012 at 1:35 pm

      Seems a bit of an Eeyore…

      Just a bit…

      raven in reply to WoodnWorld. | March 27, 2012 at 2:17 pm

      Still sore from being outed as a Romneybot? How many months, I wonder, would you have kept up the “I’m-above-it-all” ruse.

      But I’ll be delighted to celebrate my fallibility in this case.

        WoodnWorld in reply to raven. | March 27, 2012 at 6:29 pm

        Ah yes. There you go again with the whole “outed” thing again… raven, the only “ruse” here is you masking your barely concealed rage for pensive, well-considered analysis.

        I get why you are mad; hell with your track record I would be pissed too. Almost everything you have said and/or predicted in the last 3-4 months has been proven to either be wrong or irrelevant: Romneycare will hang Mitt in the primary? In the general? Voter turnout this primary season is down? Romney has problems with fundraising? Can’t garner support from small dollar donors? Obama is unbeatable, resistance is futile? He will have a billion dollar war chest? I was always a Romney supporter? My wanting to carefully weight my options in December and January was insincere? All. false.

        Eeyore is right. Anhedonia explains it all. You are great at pointing out perceived negatives but are completely incapable of offering or suggesting productive alternatives. I too will specifically take some small comfort celebrating your fallibility re: Obamacare; I just hope you know my generally doing so is *not* a rare occurrence.

        While part of me wishes you did not feel the need to, with spit and venom, reduce everyone to your level of counter-productivity, the larger part of me only wishes I could take you out to Vegas. I would make an absolute FORTUNE just blindly betting against your oh-so-sage “predictions.”

        Please, who is sore? Certainly not this guy! 😀

      But back during the 2008 campaign, Obama argued strenuously against the individual mandate. In a debate in South Carolina, he said: “A mandate means that in some fashion, everybody will be forced to buy health insurance. … But I believe the problem is not that folks are trying to avoid getting health care. The problem is they can’t afford it. And that’s why my plan emphasises lowering costs.”
      In February 2008, he said that you could no more solve the issue of the uninsured with an individual mandate than you could cure homelessness by ordering people to buy a home.

The federal government’s attempt to control 1/6th of the economy (if they control 1/6th why not the rest) defies free markets and free men. The following post at 8:12am of the Wall Street Journal live blog post struck me as to the ridiculousness of what the federal government is attempting to do. The federal government WANTS to control supply and demand. It’s all about extending the bailing out of the federal government and all the special interests out of the failed bankrupt path of promoting the General Welfare through gigantic “socio-economic” legislation by giving the federal government power to regulate commerce in the national interest.

And if something is ridiculous, you ridicule it. The federal government is broke, and we have to pay their legal fees in all of this.

http://blogs.wsj.com/washwire/2012/03/27/live-blog-obama-health-law-at-the-supreme-court-day-2/

8:12am “Justice Breyer was cut off by Justice Kennedy jumping back in with another question about the possible limits of the use of the Commerce Clause, to which the government lawyer, Mr. Verrilli, responded that the government couldn’t compel people to buy products just to stimulate demand.”

    Browndog in reply to CWLsun. | March 27, 2012 at 1:41 pm

    Mr. Verrilli, responded that the government couldn’t compel people to buy products just to stimulate demand.

    ________________–

    Mr. Verrilli, responded that the government could compel people to buy products if it were deemed Necessary and Proper.

      CWLsun in reply to Browndog. | March 27, 2012 at 2:19 pm

      Transcript of the exchange…

      http://www.npr.org/2012/03/27/149465820/transcript-supreme-court-the-health-care-law-and-the-individual-mandate

      JUSTICE KENNEDY: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

      GENERAL VERRILLI: Yes. The — the rationale purely under the Commerce Clause that we’re advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We — the — it would not justify purchases of insurance for the purposes — in situations in which insurance doesn’t serve as the method of payment for service –

      JUSTICE KENNEDY: But why not? If Congress — if Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis.

      GENERAL VERRILLI: No. The, the — we think that in a — when — the difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people’s participation in the health care market, and is regulating to deal with existing effects of existing commerce.

        WMCB in reply to CWLsun. | March 27, 2012 at 3:36 pm

        That’s a very shaky and specious argument, IMO. He’s saying that Congress could not, say, require everyone who buys a car to buy a particular make of car in order to stimulate demand. But why? Isn’t that also economic activity that is already occurring? These people are buying cars, and maybe certain car companies are deemed to be crucial employers, crucial to the overall health of the economy, and therefore govt. could decide to “regulate” that already existing commerce to force people to buy a designated product. If the mandate stands, where is the legal argument that the govt could not do so?

Solicitor General Verrilli had four minutes for rebuttal. He seized on the plaintiffs’ concession that the government could require those seeking medical care to pay for it with insurance”and thus, buy it at “the point of sale.”

–From the WSJ live blog. This statement (and a similar one from Kagan) indicate that the states agree that the fed government can require the purchase of insurance and that the states are relying on the activity/inactivity distinction.

During 2012 the Intrade probability that the mandate would be held unconstitutional has been slightly higher than one in three. It has suddenly jumped to slightly higher than fifty-fifty (basically a toss-up).

DINORightMarie | March 27, 2012 at 2:04 pm

A tweet I received:

@Doc_0: RT @TabithaHale: RT @philipaklein: Roberts said if mandate is upheld, government will be without limits

If this is true (and I believe Philip A. Klein would NOT tweet this if it were not), then Roberts is clearly indicating that he believes the mandate is unconstitutional.

Rush is going on about the above-linked CNN interview, and other articles – and many others are indicating that Justice Roberts is ambivalent, or “could be persuaded” that the mandate is constitutional. (They say the same of Alito, too.) On what planet? Based on what?!

Sounds like wishful thinking on the left’s part, if the above tweet is indeed true.

SoCA Conservative Mom | March 27, 2012 at 2:40 pm

Don’t count your chickens. I have an uneasy feeling that there is too much chatter about the law being struck down. I have that uneasy, queasy feeling in my stomach that those for striking down the law are too hopeful and will suffer a great disappointment come June.

Regardless of what happens, Conservatives need to keep the eye on the ball all the way through the Nov. elections.

    Oh yeah, I’m with Raven and SoCalMom, this stinks like a setup. I think they know how the justices will rule. I think the law will be upheld.

    theduchessofkitty in reply to SoCA Conservative Mom. | March 27, 2012 at 5:03 pm

    Usually, when the SCOTUS Justices grill someone with such force, it usually means they want to see if it definitely passes muster before they go on and decide… usually on the side of the “grilled”.

    Remember when people were waiting for Campaign Finance Reform to be struck down by the Court? Look what happened. Some of the nastiest laws that have come to being in the past 40 years have been due to a SCOTUS decision or another. (Look at Roe v. Wade – and the serpents it has unleashed.)

    This POS law should have never been allowed to pass in the first place. I blame the bribery and extortion that went on for it to be passed. A pox ten times over on any and all who were complicit in its passage!

    I’m with you on having a queasy feeling, especially after Ginsberg made her speech in Egypt telling the Muslim Brotherhood to not model their Constitution after the U.S.

    I think this thing may squeak through on a 5-4 decision. Even then I’m not going to be surprised if they uphold it either.

Its beginning to make a tad more sense why Obama has distanced himself from Obamacare as a campaign theme. Im certain he’s busy working out how he’ll portray SCOTUS as a bunch of conservative operatives that have no sympathy for working American’s everywhere. The very idea they would challange the smartest man on earth on his signature legislative achievement.
Thank the Founders for having the smarts to create a SCOTUS so we at least have a chance of overturning the vision of a runaway EGO in Chief.

Keep in mind that the core focus of the justices is being targeted at the individual mandate. Rombama lobbied Obama to include the individual mandate in ObamaCare and to this day, Rombama defends his support of the individual mandate. Just a statement of fact.

Liberal Legal Analyst Jeffrey Toobin: “This Was A Trainwreck for the Obama Administration. All of the predictions, including mine, that the Justices would not have a problem with this law were wrong.”

I can’t get over that we’re at such a humiliating point. That is, awaiting the verdict of someone named Anthony Kennedy on the future state — even existence — of our freedom. How degrading. I’m honestly surprised this fact alone hasn’t incited national rebellion. Further, here we are contemplating as our nominee someone named Mitt Romney. How do such things come about?

Here Congress is regulating existing commerce, economic activity…

Obamacare creates whole new government entities out of thin air, who’s only product is hot air and paperwork.

The government is not a valid player in private sector free market economic activity, its market rigged in its own favor, compelling people to consume more of government at the sacrifice of the private sector activity.

No matter, we are well on our way to a black market or barter economy… see Grime Wave!

Striking it down would actually reduce the federal budget deficit.

I liked what one Justice asked..maybe it was Scalia or Alito. So can the government mandate burial insurance as well?
I get a kick out when Justices ask seeming simple questions to hammer a point home and find flawed thinking/actions

^^a snipit of the exchanges

JUSTICE KENNEDY: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

VERRILLI: Yes. The — the rationale purely under the Commerce Clause that we’re advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We — the — it would not justify purchases of insurance for the purposes — in situations in which insurance doesn’t serve as the method of payment for service –

JUSTICE KENNEDY: But why not? If Congress — if Congress says that the interstate commerce is Affected, isn’t, according to your view, that the end of the analysis.

VERRILLI: No. The, the — we think that in a — when — the difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people’s participation in the health care market, and is regulating to deal with existing effects of existing commerce.
————————————————————

JUSTICE ANTONIN SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that was what regulated was commerce. And here you’re regulating somebody who isn’t covered.

By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it and that’s — that’s difference from regulating in any manner commerce that already exists out there.

VERRILLI: Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate, the method of their payment in the health care market. That is what it is.

And I do think, Justice Kennedy, getting back to the question you asked before, what — what matters here is whether Congress is choosing a tool that’s reasonably adapted to the problem that Congress is confronting. And that may mean that the tool is different from a tool that Congress has chosen to use in the past. That’s not something that counts against the provision in a Commerce Clause analysis.

JUSTICE SCALIA: Wait. That’s — that’s -it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure.

The argument here is that this also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what, what else can it not do?

The Supreme Court’s commerce clause jurisprudence is pure chicanery, which this case is clearly exposing. Ironic overreach by the brilliant progressives. Picking up the pieces after the “trainwreck” will be jolly fun!

I’ve noticed that the DNC has been sending out multiple pieces of propaganda telling about all the things you will get for “FREE” when portions of the law go into effect on 09/23/2012. I see this as planting the seeds of resentment.

    ella8 in reply to Neo. | March 27, 2012 at 6:42 pm

    If only all of that “free” stuff didn’t cause my premiums to rise, then just maybe I would believe in unicorn utopias and cotton candy dreams. Free rainbows and unicorns for everyone. Yayyyy!!!!!!!

Very interesting, the audio. Paul Clement, smoothly brilliant and a delight to listen to. By contrast, Sotomayor…

There seemed to be continuing conflation of the “health care” and “health insurance” markets.

Are both sides, even the anti-mandate side saying that the federal government could pass a law stating that those of us who do not need insurance because we can pay cash, could be barred from purchasing (and obtaining) health care unless we also purchase health insurance? If the penalty for not having health insurance goes up based on income, which is utterly unrelated to the need for health care, then isn’t that an equal protection argument?

    Ragspierre in reply to janitor. | March 27, 2012 at 7:19 pm

    “By contrast, Sotomayor…”

    Hey, according to Critical Race Theory, wise Latinas ARE NOT required to sound articulate…or even intelligent.

    It all depends on your “constructs”. See…???

    So locked in all that “objective” thinking…

    (do I need a SARC tag…???)

Based on the arguments put forth in favor of the mandate, even IF the mandate is upheld, then I could only be forced to buy inurance that constitutes true healthcare needs that I may potentially need for wellbeing and could not be payed for out of pocket. In other words, they can’t mandate that I buy health insurance that covers elective abortions since they are a matter of choice rather than necessity. I will never be in the market for an elective abortion, so I can’t be forced to be in the pool of that market. If anything, the most they could mandate is catastrophic insurance, not everything under the sun with no copay insurance.

    OcTEApi in reply to ella8. | March 28, 2012 at 4:53 am

    There were questions related to even if they could mandate catastrophic insurance…

    Remember, the health insurance industry is using statistical probability of one having a catastrophic event.

    IF they can force people to buy a product based on statistical probability of an event occurring in one market then they can justify regulating commerce based on statistical probability in any market.
    The commerce clause is intended to be used to regulate in a manner that’s realistic rather than speculative.

Thank God for Scalia. This is exactly why the November Presidential election is crucial. If the Supreme Court gets one more leftist Justice, who views the Constitution as a flawed document, or a living-breathing document that needs to be remolded into a Progressive Manifesto, the country is lost. We must beat Obama and then put pressure on the new POTUS to nominate true Constitutionalists to the Supreme Court.

    Ragspierre in reply to damocles. | March 27, 2012 at 7:30 pm

    Typically, you won’t hear Justice Thomas.

    He plays his most crucial role in the quite precincts of the justices’ chambers. Apparently, he has earned himself quite a lot of respect as a legal thinker, even among the Collectivists on the court.

If the mandate is upheld, how are they going to deal with the freewheeling happy hippies traveling the world. You know like the antiethnocentric anthropologists hanging out in India or Thailand or Malaysia. Will they have to stay in the American insurance pool during their happy go lucky youthful escapades, or will they be exempt and allowed to come home when they have cancer and mooch off of the rest of us who have been forced to pay in all along?

If liberal commentators feel that they were wrong with their predictions that SCOTUS will uphold, does it mean that some conservative commentators who predicted it were wrong too?

Having now read the whole transcript, I’d say the exchanges confirm that the decision on the mandate will be decided 5-4. The usual teams of four liberals and four conservatives appear solid, which dispenses with lefty dreams about a sweeping decision to uphold.

But I don’t come away convinced that Kennedy’s probing questions to the Solicitor General are conclusive about where he’ll come down. I think he was looking for a persuasive principled limitation on Congressional power that might — might — distinguish the health care act, preferably define it as so unique that the Court could defer to Congress in upholding this law by drawing a bright red line that would contain future expansions of federal power. IF he could find such a limiting principle, Kennedy might persuade Roberts to concur with him in order to avoid another 5-4 ruling. With Robert’s vote in his pocket, he might also be able to peal off one or two of the liberals who would be open to embracing the red line in the process of upholding.

The good news is that the government seemed incapable of coming up with a PRINCIPLED red line that would truly make this case unique. And Clement did a masterful job of arguing that such a distinction doesn’t exist basically because markets are markets.

Mark Levin is doing a great job in breaking this down.

Oh, and he had to get in his shots against RomneyCare.

He also said that “this thing can’t be predicted.”

    Ragspierre in reply to Scorpio51. | March 27, 2012 at 8:56 pm

    I’m listening to Mark.

    My impression is a little bleak. I had a friend who used to talk about “The thick of thin things”.

    What I’m hearing is a lot of tripping down goat-trails of abstruse legal doctrine. Not too remarkable, because this is what these people live and breath.

    But I think they should always, always start from first principles, and I wish I heard more of that.

I like this at Volokh, explaining the difference between the “health insurance market” and the “health CARE market”: http://volokh.com/2012/03/25/shortcomings-of-the-everyone-uses-health-care-rationale-for-the-individual-mandate/

I would like the government to require everyone to purchase a janitorial services policy in case they ever need mold cleanup or something else toxic cleaned up from their premises, and for the government to forbid them from contracting directly for janitorial services. So I can sell these mandatory policies and make lots of money. Right now, the market for these health-necessary kinds of clean-ups that no one knows when they might need is very bad. People are going without insurance. They are taking risks. Or else have the unmitigated gall to just pay cash to cleaning people. It’s hurting my interstate commerce.

Henry Hawkins | March 27, 2012 at 7:52 pm

I assume our readership and commentariat contains a fair number of attorneys. Can they assure me that the Supreme Court chamber is not filled with poker tables and a Wheel Of Fortune spinwheel?

    Ragspierre in reply to Henry Hawkins. | March 27, 2012 at 8:37 pm

    Darts, and a roulette wheel, Henry. Good grief, a nice classy roulette wheel, complete with brake.

    These guys go first class, all the way…

[…] the end of oral argument Day 2 of 3 it is the Commerce Clause, the difference between health care (which affects every human), health […]

[…] Oral Argument Day 2: The Insurance Mandate […]

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