Skip to comments.Live Blog: Obama Health Law at the Supreme Court, Day 3
Posted on 03/28/2012 8:36:39 AM PDT by katieanna
The Supreme Court on Wednesday is entering the last of its three days of arguments over the Obama health-care law, with justices set to weigh what happens to the rest of the overhaul if the court strikes down the requirement that individuals carry health insurance. We have reporters at the court, who are sending in updates on the action. The morning session started at 10 a.m. ET, and the afternoon session starts at 1 p.m.
(Excerpt) Read more at blogs.wsj.com ...
10:22 amWednesday's Argumentsby Louise RadnofskyAdd a Comment
Justice Breyer has been especially aggressive in challenging Mr. Clement to say what he proposes the justices actually do to resolve the fate of the law, suggesting that his options include appointing a special master or going back to the district courts. He's also listed several of the provisions of the law, prompting laughter when he referred to expanded health services for Native Americans as "the Indian thing."
"Those [other provisions] have nothing to do with the [mandate] stuff... OK?" he said. "They can stand on their own." Photo: Getty Images
10:21 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Justice Kagan has indicated that she believes the case law to date supports the idea that the court should apply a light-touch to what it does, and that if the choice is between leaving half-a-loaf and no loaf, half-a-loaf wins.
10:20 amWednesday's Argumentsby Louise RadnofskyAdd a Comment
Justice Kennedy has asked broader questions about the precise test that he thinks should be applied in this case to determine what Congress intended. He's been met with a flurry of responses from Justice Sotomayor, Justice Elena Kagan, and Justice Stephen Breyer. Photo: Getty Images
10:19 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Chief Justice Roberts and Justice Anthony Kennedy are considered to be the swing votes in the health-law case, so their questions will be especially key here.
10:13 amWednesday's Argumentsby Louise RadnofskyAdd a Comment
Chief Justice John Roberts has asked several questions of Mr. Clement that further the case for striking down the whole law, and echo other remarks from Justices Alito and Scalia.
He has suggested that the whole of the health-law should be considered to be linked to the individual mandate because its myriad of other provisions, such as black-lung payments, were actually included as sweeteners to pass the main bill. Without them, Congress "would not have been able to cobble together the votes to get it approved," he said. Photo: Getty Images
10:07 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Justice Ruth Bader Ginsburg has sought to argue that the most legally conservative position is to uphold the law. If the justices have to choose between "a wrecking operation and a salvage job, a more conservative approach would be a salvage job," she said.
10:07 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Conservative justices Antonin Scalia and Samuel Alito have seemed to endorse Mr. Clement's case. Justice Scalia has been responding frequently to Justice Sotomayor's remarks, pointing to what he calls "legislative inertia" as a reason not to leave the decision of how much of the law to keep to Congress. Justice Alito, meanwhile, has argued that if the judges are considering what Congress intended when it passed the legislation, they should probably consider that the legislation wouldn't have passed without its cornerstone provision, the individual mandate.
10:06 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Mr. Clement answered most of the questions he got in the first half-hour by saying that without the mandate, the health law would be a "hollowed-out shell."
9:55 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Justice Sonia Sotomayor was first to interrupt the challengers' lawyer Paul Clement, who is arguing that the whole law should be invalidated, shortly after he began making his remarks. "Why shouldn't we let Congress" decide what to do, she asked him. "What's wrong with leaving it in the hands of people" who should be taking this decision, "not us?" she continued.
9:54 amWednesday's Argumentsby Louise RadnofskyAdd a Comment The Supreme Court's liberal justices went head to head with conservative judges on the bench Wednesday morning in an effort to protect the health law, arguing strongly in favor of keeping most of the overhaul legislation even if the individual requirement to purchase insurance or pay a fee is ruled unconstitutional.
Start from the bottom and read to top for actions of the Court today. It seems apparent to me that the liberal justices know the mandate is gone and they are arguing their best to salvage the rest. The Chief Roberts rightly pointed out the “sweeteners” put into the mandate to bring more congressional votes on board.
Clearly to Kagan and Ginsberg the Constitution is a sheet of paper with invisible ink on it. Plus, they’re crazy.
Justice Scalia says its unrealistic to leave it to Congress to figure out what to do with the rest of the law if the insurance mandate is struck down. He suggests it would be better to invalidate the whole thing and let Congress start from scratch. Mr. Kneedler, in response, said such a move would violate principles of judicial restraint.
I love Scalia!
I have a feeling the individual mandate is just the first domino. Once that falls the rest of the healthcare law will fragment.
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Illustrating perfectly why we need to keep liberal activist judges from ever getting on the courts (at any level!). The simple answer to her plea is that (a) even the Congress is limited by the Constitution, and (b) the Constitution provides a mechanism for amendment, if that is the will of the people. You can't shortcut the process just because a simple majority or, in this case, a vocal minority wishes to act extra-Constitutionally.
Unfortunately, we're going to be living under the shadow of Obama (Sotomayor and Kagen appointments) long after he's un-elected this fall.
"Wise Latina", indeed.
“without the mandate, the health law would be a “hollowed-out shell.”
Hold that vision!
Without the mandates. US Insurance companies cannot finance the rest of Obama care without MASSIVE premium increases.
That will result in MILLIONS losing healthcare insurance, even more than are losing it now due to Obamacare.
Ready-made Democrat ‘Crisis”
Justice Scalia says it’s “totally unrealistic” to expect the Supreme Court to go through 2,700 pages of the health-care law and figure out which provisions should remain in place and which must be thrown out because they’re interconnected with the insurance mandate.”
Excellent point! How can you go through 2700 pages. Again, I love Scalia.
Thanks for keeping us informed Katie....interesting read to see what they are arguing. Looks like the mandate issue is at the heart...without it the whole stack of cards comes tumbling down. The Insurance Companies could not survive otherwise....but perhaps that is the intent where only the stronger survive....which can be controlled by the government in order to “save” the industry?
“He suggests it would be better to invalidate the whole thing and let Congress start from scratch. Mr. Kneedler, in response, said such a move would violate principles of judicial restraint.”
Well Mr. Kneedler, the judicial restraint violation would balance out the gross legislative violation.
"The morning session started at 10 a.m. ET, and the afternoon session starts at 1 p.m."
None of them are wearing sweatbands.
Maybe that's the intent....then the Insurance companies would likely merge into huge conglomerates as means of the Government "saving" them.....control of easy then.
Please do ping me for Scotus. Thank you.
We need to nullify the bill, to see what’s in it.
Hearing liberals argue for judicial restraint is like hearing communists argue for free enterprise.
It's a bit worse than just having to go through 2,700 pages. The Act has multiple links to other laws and they in turn have links. Those would have to be analyzed in order to understand the impacts of their interrelationships. The Act also grants authority to multiple departments and agencies to promulgate regulations under it.
It's a mess, and that may be one of the reasons why few in the Congress took the time necessary to read, analyze and understand it.
Act III of Shadows on the Wall. They will rub their chins and ask penetrating questions... just before pulling the rug out from beneath our feet.
Newsies are blaming the government’s attorney for not making a good enough case.
[He may need medical — they are thowing him under the bus.]
Disagree. The individual mandate will be the bone thrown to the public and the rest will be allowed to stand. The national healthcare train left the station two years ago and the New World Orderist will not allow it to be derailed.
It’s the law itself that gives Sebelius almost carte blanche to regulate as she wishes.
If the mandate is declared void but the rest of the law stands and Congress is left to figure it out, what role would they actually play?
Besides the fact that in this divided gov’t the Congress is paralyzed, what would stop Sebelius from simply assuming regulatory power over what to do minus a mandate??
I haven’t heard this discussed.
Read the article linked at post #6 for some Machiavellian thinking.
I don’t agree the rest will be left to stand without the mandate. The conservative Justices are making compelling arguments that that is not even a plausible. It’s not even workable.
It is on record, it is fact, that the Congress had not read the Obamacare bill. They were told they’d have to pass it to find out what was in it.
Therefore, Congress intent was “pass the bill”.
Therefore, the proper response is to “strike the bill”.
I’m not sure if it’s urban legend, but I understand there’s even something in the bill about the gold market. The proper thing is to simply strike it all.
This group - including Roberts, do not have the mental fortitude (aka, testicles) to overturn this legislation. Krauthammer and our favorite Libertarian, Mike Church are exactly right. This Court will do anything, make any argument to uphold this law. They (especially Roberts) don't want to be seen as an activist bench. Those responses from the petitioners were right on point to remind them they don't want to be seen that way.
It is just a continuation of the last 50 years of expansion of the Federal Government. Don't be fooled by the questions; they are just looking for more ammo to cite in their concurring opinions. As I said before, Kagan probably brought the opinion over with her from SG’s office when she took the job.
Compelling to you - never underestimate the mental gymnastics a committed liberal activist and zealot will perform.
I respectfully point out that striking the entire statute IS the correct action from a judicial restraint point of view. Striking only parts and having the Court go through and re-write the legislation is much more a usurpation of the legislative role and having the court substituting its judgment for the (so called)judgment of the (so called) people’s representatives.
But for those interested, I've been posting all the WSJ tweets coming down from their people inside the courtroom beginning at Post 153 and following. If nothing else, it's a quick summary, plus reports from all three days of the proceedings are in there.
"One way or another, Congress will have to revisit it in toto," said Justice Antonin Scalia.
Agreeing, Justice Anthony Kennedy said it would be an "extreme proposition" to allow the various insurance regulations to stand after the mandate was struck down.
Meanwhile, the court's liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a "salvage job," not undertake a wrecking operation." But she looked to be out-voted.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.
I do believe insanity is galloping amongst that duo.
This is the critical decision. Notice how the liberal “Justices” are all in a flurry. If they strike down the individual mandate but leave the rest, then we are toast.
There was no severability clause in the bill. They put one in, but then they took it out. Notice that the slime justices are trying to get around this by asking what was congresses “real intent”?
That’s activist language. Not what did the Founders actually say in the Constitution, but what did they secretly MEAN, reading their minds? What did congress secretly MEAN by failing to include a severability clause.
To hell with that. No severability clause—the whole thing should go down, and let congress start over again.
I agree with you. It is not the job of the judicial branch of government to legislate.
If I’m not mistaken, because the Dems didn’t plan on Scott Brown getting elected, they didn’t “touch up” the bill like they would have and didn’t put in the severability (sp?) clause. There was something about they thought the other house would have changes and put that in but they never got a chance.
I thought that because of that, if part is found un-Constitutional, all of it has to get thrown out, right? I could be wrong, I’m just asking if someone else knows about this......
I would agree, but I don’t think they can rule on a congressional process unless it’s written down and codified.
In any case, the bill was not even read. That suggests that Congress didn’t even know what it was passing.
Therefore, strike it all down.
Without the mandate, there is not funding.
Congress would have to raise taxes to fill in the huge shortfall left without the mandate. There’s no way the House would pass taxes to fund this and I doubt the Senate could as well, so Reid won’t even bring it up for a vote.
Romney has said that if the bill is not struck down, one of his first acts if elected would be to grant all 50 states waivers from complying with the bill.
If the mandate is struck down and the rest of the bill stands, it is still untenable. How could Obama run on health care if it means no end in sight for the taxes needed to fund it? He’d be a sitting duck.
My thinking (may be wrong) is that if the mandate is nixed, no matter what is decided about the remainder of the bill, it is dead because it can’t be implemented.
funny how Sotomayor doesn’t want to leave abortion in the hands of the people.
I’d have loved for one of the conservatives to bring that up.
What? Like the latter day Chicoms???
exactly. to me the fact that Congress didn’t include the severability clause decides the case. the argument should have lasted about 30 seconds. Clement gets up and says “May it please the Court, this law has no severability clause, In fact, Congress specifically passed it knowing it lacked one. Further, it did have one origianlly and they removed it and passed the law without it. End of story. I reserve the balance of my time”
Also, Clement may have well locked down a SC appt of his own with this case.
“How could Obama run on health care if it means no end in sight for the taxes needed to fund it? Hed be a sitting duck.”
He’ll have a new crisis to run on. It’s being cooked up now. Economy or Middle East - blame Bush.