[BenLurkin]

I wish I shared Mr. Zengelre’s confidence in the integrity of SCOTUS...but I do not.

[tomkat]

*perspective ping*

(you'll prolly get tired of this before it's over ;-)

[Clintonfatigued]

Even supporters of Obamacare are privately admitting that Paul Clement is doing an effective job. Remember that name. If Obama is defeated for reelection, Clement may be headed for the Supreme Court again, this time as a member.

[the invisib1e hand]

handled them with aplomb...

[Cboldt]

Heh. I wonder where Clement got his recasting of the inactivity argument.

cboldt says:
I think it is pretty clear that the "activity" "inactivity" distinction is a diversion from the text of the constitution.

Does Congress have the power to compel commerce?

May 10, 2011, 11:24 pm

[Tublecane]

He didn’t win; whoever wrote the law lost. Perry Mason couldn’t defend the mandate. Lionel Hutz couldn’t fail to argue it down.

[bigbob]

New Gummint Business Model:

1. Do nothing until it becomes a crisis
2. Create gummint solution
3. Pass and/or deem it passed by partisan hack legislature
4. Stack the bench to be sure it’s upheld in court
5. Lose money by failing to implement cost controls
6. Make it up in volume (add 25 million to the free HC dole)

[Repealthe17thAmendment]

One of the most chilling things in the argument was this segment of SG Verrilli's closing statement:

There is no temporal limitation in the Commerce Clause. Everyone subject to this regulation is in or will be in the health care market. They are just being regulated in advance.

[Adder]

Ok...so the decision is 4-4. NOW what?

[Advocatus Sancti Sepulchri]

5 to 4 striking down Obamacare.

[kabar]

I listened to the audio and read the transcript. Clement was absolutely superb. I am really glad he is on our side. Clement was head and shoulders above the other two.

[A CA Guy]

Would love this to be a 7-2 against Obamacare the way it was for Bush against Gore.

[originalbuckeye]

Shannon Bream today (Bret Baier's show)suggested that Roberts might uphold Obamacare so as not to be perceived as an ‘activist’ judge. She claimed that he may respect the fact that the law was passed by the Congress and signed by the President. Does she not remember the sleazy manipulations used to get that obamanation passed?? Using reconciliation to get it passed when it had nothing to do with a law that could be passed through reconciliation? Holding the Senate vote after Scott Brown had been elected to the open seat in Massachusetts, but delaying his oath so the appointed Dem (who shouldn't have been there at all per Massachusetts law)could vote for it?? There should be NO RESPECT granted this travesty. I am hoping that the SCOTUS protects and defends our Constitution as they have sworn to do. This is NOT A CONSTITUTIONAL LAW! It must be struck down or our successful, vibrant country will be relegated to history's dustbin with all the other countries who have once lead but have been destroyed from within.

[Secret Agent Man]

Basically if you don’t buy something, you are not engaged in commerce, therefore there is nothing you’ve done to come under government regulation via the commerce clause. No commerce has commenced.

Another way to look at it, is in NOT buying something can be regulated under the commerce clause, then there is absolutely nothing that doesn’t fall under the commerce clause for govt regulation. If you buy something or if you don’t, it’s all the same, and all your decisions can be regulated and mandated by govt.

If the court deems it constitutional it’s time to part ways with King George again.

[montanajoe]

Oral argument is not going to change a single justices mind, they already know how the Court will rule.

As everyone knows it will come down to Kennedy. He gave each side just enough to keep them guessing.

IMHO its possible he will find the mandate unconstitutional under the commerce clause but its sure not anything I'd bet on.

I think the AIA arguments yesterday tipped the justices hand. If the whole thing was going to be overturned the losing side would have been pushing the AIA to delay things but both sides wanted it to go forward. Telling me at least, that the mandate may be overturned but the other parts of the statute will stand.

[ought-six]

When Kagan did not recuse herself (as legally she should have), I assumed the “fix” was in.

[yefragetuwrabrumuy]

If previous cases are a clue, most of the conservative justices will do a heavy analysis on the “consensus arguments”, as you would expect. But Justice Thomas opinion is going to be the one that “rings chimes”.

Thomas writes opinions with the expectation that others will deal with the obvious. So instead he writes theses that will impress legal scholars and make the law books, pointing out deep and abiding constitutional arguments that can stand on their own, independent of the consensus arguments.

For example, in McDonald v. Chicago, while all the focus was on arguments surrounding the 2nd Amendment, Thomas hit a huge home run with a 100 page opinion about a clause in the 14th Amendment. The “privileges or immunities” clause was actually closer to the mark of the case than was even the 2nd Amendment. However, over time it had become moribund and neglected.

With Thomas’ concurring opinion, he effectively rewrote the 2nd Amendment arguments, and revitalized the clause to be a major part of American civil rights.

He may practically write a law book for his opinion on Obamacare. He is no slouch, and deserves his reputation as one of the top jurists to ever sit on the court.

[Lmo56]

Carvin [the other attorney] ain’t too shabby either. Between the two of them [Carvin and Clement], they make a good tag-team ...

Here is an exchange between Carvin and Sotomayor:

*****

MR. CARVIN: No, no, no. I was — they create this strawman that says: Look, the only alternative to doing it the way we’ve done it, if we condition access to health care on buying health insurance, the only way you can enforce that is making sick people not get care. I’m saying no, no.

There’s a perfectly legitimate way they could enforce their alternative, i.e., requiring you to buy health insurance when you access health care, which is the same penalty structure that’s in the Act.

There is no moral dilemma between having people have insurance and denying them emergency service. Congress has made a perfectly legitimate value judgment that they want to make sure that people get emergency care. Since the founding, whenever Congress has imposed that public responsibility on private actors, it has subsidized it from the Federal Treasury. It has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt, which is what they’re doing here.

They’re making young, healthy people subsidize insurance premiums for the cost that the nondiscrimination provisions have put on insurance premiums and insurance companies.

JUSTICE SOTOMAYOR: So the -

MR. CARVIN: And that is the fundamental problem here.

JUSTICE SOTOMAYOR: So the — I — I want to understand the choices you’re saying Congress has. Congress can tax everybody and set up a public health care system.

MR. CARVIN: Yes.

JUSTICE SOTOMAYOR: That would be okay?

MR. CARVIN: Yes. Tax power is -

JUSTICE SOTOMAYOR: Okay.

MR. CARVIN: I would accept that.

JUSTICE SOTOMAYOR: Congress can — are you taking the same position as your colleague, Congress can’t say we’re going to set up a public health system, but you can get a tax credit if you have private health insurance because you won’t access the public system. Are you taking the same position as your colleague?

MR. CARVIN: There may have been some confusion in your prior colloquy. I fully agree with my brother Clement that a direct tax would be unconstitutional. I don’t think he means to suggest, nor do I, that a tax credit that incentivizes you to buy insurance creates a problem. Congress incentivizes all kinds of activities. If they gave us a tax credit for buying insurance, then it would be our choice whether or not that makes economic sense, even though -

JUSTICE SOTOMAYOR: So how is this different than this Act, which says if a taxpayer fails to meet the requirement of having minimum coverage, then they are responsible for paying the shared responsibility payment?

MR. CARVIN: The difference is that the taxpayer is not given a choice ...

[originalbuckeye]

One more comment: Obama thought he was too smart by half. If he had nominated another Flaming Leftist to the SCOTUS he would have had Kagan arguing this case. She should have recused herself but she's a Leftist (they NEVER take responsibility for anything they do)so will rule for Obamacare. But she would have done him more good arguing. His Solicitor General doesn't have the intuition that Kagan has. She was INSTRUCTING him today on how to argue the case. WHAT AN EMBARRASSMENT!

[cornfedcowboy]

Question: Would a “single payer” health insurance system be constitutional if passed by congress.