Tuesday, March 27, 2012

ObamaCare/SCOTUS update


We generally do not like to news chase too much but we will make this exception for very obvious reasons.

The conventional wisdom from across the political spectrum is that ObamaCare suffered a pretty bad day at the conclusion of day 2 arguments heard from both sides before the Supreme Court:

Today was the main event at the Supreme Court, debating the constitutionality of the individual mandate. The Court’s audience, including more than a few members of Congress, was full for the marathon two-hour argument. Even near the back of the courtroom, I shared a bench with three senators — the Court’s VIP section was obviously inundated.

Solicitor General Verrilli had a rough start to his argument, speaking haltingly, stumbling, and stopping to take a drink. The solicitor general spent almost all his time trying to convince the justices that health care is, in fact, different from other markets. While Justices Ginsburg and Kagan were trying to throw him soft balls, Verrilli kept striking out with Justices Scalia, Roberts, and Alito, and to some extent, Kennedy.

Justice Kennedy was particularly concerned because, as he put it, the government bears a “heavy burden of justification” when a law “changes the relationship of the individual to government in a unique way.” From my reading, General Verrilli didn’t ultimately convince them, and Justice Kennedy returned to the issue several times. He asked whether the administration’s argument had any limits “at all,” and noted that the mandate “requires the individual to do an affirmative act,” a completely novel type of law.

Kennedy continued, expressing concern with the effects of the mandate and skepticism with the alleged constitutional right for Congress to compel you to purchase health insurance:

KENNEDY: Health care law “changes the relationship between the individual and the government in a very fundamental way.”

KENNEDY: Can you “create” commerce in order to regulate it? Suggests govt has “heavy burden” in health care case.

This exchange is particularly significant as it is generally felt that if the court splits 4-4, Kennedy is seen as the all-important swing vote.

Here's CNN analyst Jeffrey Toobin assessing the day's results:

CNN Legal Analyst Jeffrey Toobin, following Supreme Court arguments on President Obama's health care law, said on CNN that based on what he heard inside the Court, things didn't look good for proponents of the law.

"This was a train wreck for the Obama administration," he said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."

Toobin added that he felt that U.S. Solicitor General Donald Verrilli simply wasn't prepared for the conservative justices.

"I don't know why he had a bad day," he said. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

Toobin also said he thought Justice Kennedy, the perennial swing vote, was a "lost cause" for supporters of the health care reform law.


Obviously, no time to go uncorking the champagne yet, but it appears the ObamaCare mandate is facing some pretty long odds.



B-Daddy said...

Overlooked is the medicaid provision which could also cause an overturn on federalism grounds. From the WSJ:

Florida and 25 other states contend that ObamaCare's conversion of this voluntary program originally intended for the poor into all-purpose insurance for tens of millions of people is unconstitutional coercion. By commandeering the states and their taxpayers as de facto arms of the federal government, the Administration has abrogated the system of dual sovereignty as surely as it has by claiming police powers.

Medicaid was created in 1965 as a cooperative federal-state partnership. States could opt in, or not, and there were still holdouts as late as 1982. The program has expanded greatly over the years to the point that it is now the largest component of most state budgets. But Governors and legislatures have always had some measure of flexibility and independent control.

The Affordable Care Act obliterates this status quo and forces states to add everyone up to 138% of the poverty level to the rolls. The feds will pick up most of the new costs through 2020, though the states are still on the hook for between $20 billion and $43.2 billion in new costs, and much more into perpetuity.
. . .
The Court has always balanced federal and state power by distinguishing between pressure and coercion. ObamaCare crosses that line. The conditions of new Medicaid conscript the states into involuntary servitude to the federal government's policy goals, in this case national health care. They would no longer be independent and autonomous units within the federalist system but agents of Washington.

K T Cat said...


Dean said...

B-Daddy, thanks for that!

KT, thanks for the link.