Posted on 03/28/2012 6:31:10 AM PDT by SeekAndFind
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.
The Chief Justice and Justice Scalia were most vocal on this issue, the Chief declaring that “all bets are off” if they accept the expansive interpretation advanced by the administration.
Justice Kennedy probed Paul Clement, who was arguing for the 26 state respondents, on whether Americans “are in the market in the sense that they create a risk the market has to account for.” Justices Kagan and Breyer were firmly in this camp, with Breyer content that the risks alone were enough to bring people into a market. He went so far as to suggest that being born was equivalent to entering the health-care market. Justice Kagan was in favor of not “slicing the bologna too thin” by paying attention to the details of whether and when people enter a market.
An analysis by Justice Sutton of the Sixth Circuit got some play as Justice Kagan signaled twice that she might view the challenge differently if it were an as-applied challenge. For example, she suggested a Christian Scientist who objects to heath care might make a better plaintiff.
Justice Ginsburg, unsurprisingly, sent clear signals that she accepted the administration’s position. While she agreed that the mandate is a form of cross-subsidization, she was untroubled by this, given the cost-shifting that happens due to uncompensated health care.
Justice Breyer was perfectly comfortable with Congress creating commerce ex nihilo, a position even the solicitor general went to great (and, I believe, illogical) lengths to distance himself from. The solicitor general insisted on making the demonstrably false statement that the mandate in fact is not “creating commerce,” but is regulating actual market participants.
General Verrilli justified rounding the number of participants in the health-care market up to 100 percent simply because over 80 percent of Americans use health care yearly. But even a small percentage of the American population still represents millions of individuals.
Justice Kennedy expressed concern that the “uniqueness of the health-care market” would not operate as an effective limit on the Commerce Clause, because Congress would just say something else is unique next year. He nonetheless queried whether the line between participants and non-participants was not “uniquely proximately very close.” If Justice Kennedy does decide to uphold the individual mandate, he will try to construct a limiting principle, and hopefully one that is more defined than the obviously unadministrable question of “unique, proximate, very-closeness.” This is why people speculate the Chief Justice may vote with Justice Kennedy if he decides to uphold the law, in order to provide a more workable limiting principle.
Today’s argument indicates that those predicting a lopsided decision in favor of the mandate should start getting used to disappointment, and those who value their constitutional protections have good reason for optimism.
I’m sorry, but if you read the article, the full analysis doesn’t support the optimism at the beginning or end.
They even speculate that Roberts will vote with Kennedy to uphold the mandate, just so they can create a “limiting principle” for future cases.
Do you need any further evidence that many of the justices are out of touch with reality and are playing with ivory tower concepts? Kennedy probably wants to be mister oh so wise on health care the way O’Connor was on abortion and other issues.
IMHO Kennedy’s suggestion that a young uninsured person is close to participating in the health care market by not doing anything, is simply outrageous.
A mandate is merely a dictate. Thus, if we are dictated to, do we then live under a Dictatorship?
If our freedom of choice is taken from us by the dictates of a hostile Federal government, then what Liberty do we have left?
If Roberts votes to uphold the mandate - Bush’s legacy will have really been cemented.
Who needs a Reichstag Fire when these @$$clowns mandate themselves into ordinary citizens’ everyday lives.
I'm not anywhere near to being a legal scholar, but... isn't that outside his bound? Is he not required to interpret the constitutional application of the law, as written?
The one silver lining I can see is... if it’s upheld, then all attention turns to repeal... in an election year.
Poll after poll after poll shows American’s don’t want this monstrosity.
Right you are!
I hold politicians and judges accountable by what they do, and somewhat by what they say they will do.
The 4 TRILLION dollars that GWB added to the National Debt is still 4 Trillion Dollars of Debt. “If you spend the cash, you own the Debt.”
Roberts’ yellow spine is that he does not want to interfere with laws passed by Congress.
Thus, Roberts rejects his Constitutional duty to be a check and balance to the Executive and Legislative Branches of the US Federal Government.
I predict 4 to 5 in support of the individual dictate (=mandate), thanks to turncoat Roberts.
BTW, is the Warren wanna-be Roberts votes in the individual insurance dictate, I will fly my American Flag in my front yard at half staff, 24/7/365.25 until it’s abolishment.
BTW, BTW, was that an Obamadrone I heard overhead?
My bet is that it will be upheld... more for the fact that it is the first black president’s major accomplishment. Why bloody their hands when the next congress will wrangle over it. The great experiment is going down the tubes... oh well, what the hell...
The Supremes always put on a good show before they allow another sweeping socialist mandate to be shoved down our throats.
They ask penetrating questions, act skeptical, appear pensive and thoughtful, then they go with Big Government.
This is nothing but a little pony show!
It was already settled at the meeting in SCOTUS by the eight judges on Janary 14, 2009!!
If anyone think that the U.S. S.C. now dare to go against the illegal alien and usurper (after publicly being scolded at the SOTU) who has thratening the Dung Head Media if they as much as said a peep about Sheriff Arpaio’s press conference, they too must have “drunked” the cool-aid served like the sleeping and “fainting,” crowd here as in remeberanc of the Jim Jones disciples, are very naive. Breitbart and other “victims” comes to mind!!!
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