Listening to the Supreme Court hearings on Obamacare. . .

@Thomas,

Scalia's questions appear to be mirroring Ilya Somin's amicus brief for the Washington Legal Foundation. (PDF). While Obamacare and its mandate may well be a "necessary" excercise of Congress's powers under Article 1 Section 9, it is not "proper" because upholding it would give Congress unlimited power. Verilli is struggling to articulate a convincing constiutional principle that justifies Obamacare but would not justify a future claim of Congress to unlimited power. Ugh.

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@Thomas,

I liked Justice Scalia's libertarian remark about broccoli.

David

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@Thomas,

I dont plan on listening to the three day coverage. Im sure that NYC will have a SUNADY version of the entire thing. Then we wait 3 mionths or so for a decision and a well written series of opinions for the majority and the dissenters.

Just like the best book on Bin Laden has NOT been written yet. Im very patient.
Say that the USSC finds ofr the administration. I think tht will do Obama in since theres a lot of undicideds out there. I see him being deposed and a return to a GOP Senate majority. Then I see the thing being overturned by CONGRESS.

Course thats just the most entertaining scenario.

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@Thomas,

Scalia, J knows that the Congress
was not granted the unlimited power of Saddam, Stalin & Hitler,
on condition only that it allege that the power is employed to regulate interstate n foreign commerce.

David

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Paul Clement, representing the states in the case against Obamacare, is doing his job superbly. There's a genuine exchange between him and the liberal justices, in a way that there wasn't between Verelli and the conservative justices.

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@Thomas,

I have never doubted that the S.C. would overturn Obama care by a 5 to 4 majority. The republicans have a majority on the court.

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@RABEL222,

RABEL222 wrote:

I have never doubted that the S.C. would overturn Obama care by a 5 to 4 majority. The republicans have a majority on the court.

Ironically, one prominent line of questioning from the conservative judges was, "if the problem is that people under-insure on the free market, why didn't the government just provide healthcare and raise taxes to finance it?" If there is any judge on the court who would oppose a Medicare-for-all system in the spirit of Edward Kennedy, I haven't noticed him. (And I did pay attention.) I disagree that the conservative judges' constitutional principles come down to a simple question of conservative v. liberal.

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I have to give it to the side I oppose: In Monday's and Tuesday's hearings, they have presented a clear and consistent case. It consists of three main points, which they hammered home again and again, with confidence and power:

Obamacare's individual mandate is not a proper exercise of Congress's power to regulate commerce, because its rationale is overbroad. No principled interpretation of the Constitution both justifies Obamacare and denies Congress unlimited power. This conflicts with the Constitutional principle that the federal government is one of limited and enumerated powers.
Obamacare's individual mandate is not a proper exercise of Congress's power to tax, because neither the mandate nor the nonperformance penalty is a tax. Just because Congress calls a penalty a tax, that doesn't make it a tax.
The Anti-Injunction Act permits the Supreme Court to judge the merits of Obamacare. The Act prohibits courts from judging the merits of taxes before the covernment collects them. But because neither the mandate nor the nonperformance penalty is a tax, the Act doesn't apply to this case.

By contrast, Solicitor-General Verrilli botched his presentation of the case for Obamacare. He sounded incoherent at best and disingenuous at worst. One day, the noncompliance penalty was not a tax for purposes of the Anti-Injunction Act. The next day, it is a tax for purposes of falling under Congress's taxation power. One minute, the whole thing is "a comprehensive scheme", the merits of which must be judged as a whole. Ten minutes later, its provicisions are separate.

For president Obama, Verrilli's boss, the Affordable Healthcare Act is the signature accomplishment of his administration. Verrilli made a total mess out of its defense. What on Earth was the White House thinking?

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as i understand this, the supreme court (supreme compared to who, i'm ultimately more supreme than any of them, i just don't go around bragging about it) is deciding on obama's mandate

but really if obama wants to date men, surely that's between michelle and him

i do however give him a lot of credit, homosexuality is not a popular subject in the black community, so congrats to obama for coming out and i hope he and his mandate (and really he should probably make mendates, don't just settle for the first guy to come along) are very happy

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@farmerman,

farmerman wrote:

Say that the USSC finds ofr the administration. I think tht will do Obama in since theres a lot of undicideds out there. I see him being deposed and a return to a GOP Senate majority. Then I see the thing being overturned by CONGRESS.

I don't. Opposition to Obamacare comes from both sides---conservatives who want to abolish it, and liberals who think it doesn't go far enough. If the Act clears the Supreme Court, I see that throttling the conservative opposition and invigorating the supporters and the liberal opposition. Obamacare will soon become as popular as Romneycare is in Massachusetts, and as Medicare is nationwide.

But will the Act clear the Supreme Court? After yesterday's hearings, I'm counting four made-up minds in support (Breyer, Ginsburg, Kagan, Sotomayor), three made-up minds in opposition (Alito, Scalia, Thomas), and two swingable votes (Kenndy and Roberts). I hope the briefs were good enough to clinch their vote for Obamacare, because Verilli's presentation certainly didn't.

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@Thomas,

Tom Goldstein, the creator of Scotusblog, somewhat agreed with you on Verrilli's performance, but also defended him for an article in politico.com.

What's interesting, though, is what he told CNN (expanding on his comments regarding yesterday's session) which pretty much mirror your last paragraph. In the end, he's fairly confident that both Roberts and Kennedy will swing to the side supporting the mandate, and overall, the ACA will be upheld by a 6-3 final vote.

Quote:

...But Supreme Court lawyer and SCOTUSblog publisher Tom Goldstein defended Verrilli's presentation, suggesting that critics were making too much of a few awkward pauses early in his remarks.

The reality, Goldstein said, is that Verrilli had a hard case to make that relied on the intricacies of health insurance economics. He needed to demonstrate that someone's decision not to buy health insurance is, in fact, an economic "activity" that Congress can regulate under the Commerce Clause. Try making that sound snappy.

"There are sides of cases that are easier to argue and sides of cases that have better bumper-sticker answers, which is what the plaintiffs have here," said Goldstein, who was in the courtroom. "If the government loses, it’s going to lose because of [the substance of] its case. Don Verrilli did a fine job."

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@Irishk,

Irishk, quoting Tom Goldstein wrote:

The reality, Goldstein said, is that Verrilli had a hard case to make that relied on the intricacies of health insurance economics. He needed to demonstrate that someone's decision not to buy health insurance is, in fact, an economic "activity" that Congress can regulate under the Commerce Clause. Try making that sound snappy.

He did a bad job even on this premise, which I agree with. Consider the episode on pages 18--19 of C-Span's transcript: Virelli argues that the peculiar economics of healthcare justify regulation of non-action because staying out of the healthcare market raises the price of healthcare for others. Justice Scalia counters: "General Verilli, you could say the same about buying a car. If people don't buy cars, the price that those of us who do buy cars pay will have to be higher." Here is Verilli's chance to make his mark.

A well-prepared Verilli's would have answered: "No, we won't! When I chose not to buy a car, supply-and-demand 101 tells us that the equilibrium car price declines for the rest of the market. By contrast, the equilibrium health-insurance premium rises for everybody else every time someone abstains. This tells you that healthcare economics are indeed peculiar. And it's because it's so beculiar that we can distinguish the specific power to enact Obamacare from the general, all-encompassing power grab you so rightfully resist." Scalia offered Virelli a perfect opportunitiy to raise the conservative justicess consciousness to an important flaw in their conceptual framework. Instead, Verilli evaded the question and lost his way in technicalities. Read it yourself if you want to, it's on page 19 (PDF).

Irishk, quoting Tom Goldstein wrote:

Don Verrilli did a fine job."

I disagree.

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It's rare that an oral argument wins or loses a case. In this respect, I think Clarence Thomas makes some sense. His position is that, if the briefs and the underlying court opinions lay out everything that is necessary for the supreme court to make its decision, then there's no need for oral argument at all (or, from a practical standpoint, there's no need for him to participate in questioning the lawyers at oral argument). And that's true: by the time a case reaches the supreme court, it has been briefed and argued and ruled on multiple times. There's really not much mystery left for the court. Oral argument, then, becomes just another Socratic exercise in which the justices demonstrate how much smarter and cleverer they are than the lawyers who are arguing the case. As for making a substantive difference in the way a case turns out, though, I doubt that happens more than a couple of times in any term.

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@joefromchicago,

Let's hope the briefs prove convincing then.

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@Thomas,

Thomas wrote:

Ironically, one prominent line of questioning from the conservative judges was, "if the problem is that people under-insure on the free market, why didn't the government just provide healthcare and raise taxes to finance it?"

This is kind of my hope, that if they strike down the mandate then Obama goes back and gets Medicare for all.

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@FreeDuck,

I agree that would be better. Probably, it will even make sense to conservative lawyers and judges. But conservative politicians will kill it. "Obamacare 1 was socialist enough to violate the constitution, and his answer is to come up with even more socialism?" I doubt Obama can make this work politically. And the depressing thing is, there's a pattern to it. We've been there before when the Obama administration asked for just a little stimulus, thinking they could come back for more later. See how that worked out for him. Obamacare II will see similar 'success'.

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Very interesting commentary about the oral arguments in the Supreme Court. Thanks.

While I disagree with Thomas and strongly believe the Health Care Law (and some new aspects of Medicaid legislation) represent unwarranted expansions of Federal powers clearly beyond what was contemplated in the constitution, that doesn't mean the Court will agree. Even beyond that, it would be very hard to demonstrate that the texture of questioning from the court during oral arguments is a reliable indicator of the eventual outcome, particularly on such divisive issues. I suspect this one could easily go either way.

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Independent of this particular case, one aspect of Supreme-Court theatralics baffles me. It's not so much about the Supreme Court as about the press coverage. Why are skptical questions so often dubbed "hostile". Why does even the sober Brookings Institution report that Alito and Scalia 'assaulted' Verilli? It's a hearing, to clarify questions that the briefs left unclear. What questions other than skeptical ones are worth the judges' time to ask?

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@georgeob1,

"Federal powers clearly beyond what was contemplated in the constitution"

Many sections of the constitution could improve to meet the 21st century changes since the age of Madison. Do you or don't you agree?

BBB

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Listening to the Supreme Court hearings on Obamacare. . .

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