Listening to the Supreme Court hearings on Obamacare. . .

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?

"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

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.

I just finished the hearings on severablility. I'm pretty confident the Supreme Court will vote for it. (Meaning that, if the Court ends up striking down the mandate, the rest of the Affordable Healthcare Act will remain good law. It would then be Congress's job to make work whatever is left.)

I just finished the hearings on severablility. I'm pretty confident the Supreme Court will vote for it. (Meaning that, if the Court ends up striking down the mandate, the rest of the Affordable Healthcare Act will remain good law. It would then be Congress's job to make work whatever is left.)

"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?

If you are right (and I suspect you are) then the Congress that deals with the residue of the law will be one of a very different composition from the one that enacted it.

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.

Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.

Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.

JUSTICE SCALIA: Wait. 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?
GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that -- this is a regulation -
JUSTICE SCALIA: No, that wasn't my point. That is not the only constitutional principle that exists.
GENERAL VERRILLI: But it -
JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that's a principle?
GENERAL VERRILLI: Of course we do, Your Honor.
JUSTICE SCALIA: Okay. That's what we are talking about here.
GENERAL VERRILLI: And the way in which this Court in its cases has policed the boundary that -- of what's in the national sphere and what's in the local sphere is to ask whether Congress is regulating economic activity with a substantial effect on interstate commerce.
And here I think it's really impossible, in view of our history, to say that Congress is invading the State sphere. This is a -- this is a market in which 50 percent of the people in this country get their health care through their employer. There is a massive Federal tax subsidy of $250 billion a year that makes that much more affordable. ERISA and HIPAA regulate that to ensure that the kinds of bans on pre-existing condition discrimination and pricing practices that occur in the individual market don't occur.
JUSTICE SCALIA: I don't understand your point -
GENERAL VERRILLI: This is in -
JUSTICE SCALIA: Whatever the States have chosen not to do, the Federal Government can do?
GENERAL VERRILLI: No, not at all.
JUSTICE SCALIA: I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.
GENERAL VERRILLI: But this -- but, Your Honor, this is -- what the Court has said, and I think it would be a very substantial departure from what the Court has said, is that when Congress is regulating economic activity with a substantial effect on interstate commerce, that will be upheld. And that is what is going on here. And to embark on -- I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought to embark on is to import Lochner-style substantive due process -

Verrilli did discuss the anomalies of healthcare economics in this exchange with Scalia: