Free Republic

If the Supreme Court rules the federal health care bill's mandate unconstitutional, the Malloy administration may try to implement it in the state. The Affordable Care Act will require most Americans, beginning in 2014, to obtain health insurance coverage or be subject to a fine. But after three days of Supreme Court arguments on the Affordable Care Act this week, governors like Dannel Malloy are considering what they will do if the high court declares the individual mandate -- or the entire act -- unconstitutional. Jeannette DeJesús, the governor's special adviser on health reform, said Thursday that Connecticut may implement...

Wednesday's transcripts from the Supreme Court in print and audio format courtesy of FierceHealthcare.

...The problem for the left is that they do not have a lot of interaction with conservatives, whose intellects are often disparaged, ideas are openly mocked, and intentions regularly questioned. Conservative ideas rarely make it onto the pages of most middle- and high-brow publications of news and opinion the left frequents. So, liberals regularly find themselves surprised when their ideas face pushback.

Supreme Court – 03.28.12 An exchange between Justice Kagan and Lead Plaintiff Attorney Clement… Clement had barely finished his first sentence when Kagan immediately asked him why it was coercive for the federal government to give billions of dollars in additional aid to the states. “There are no matching funds requirements, there are no extraneous conditions attached to it, it’s just a boatload of federal money for you to take and spend on poor people’s healthcare,” she declared. “It doesn’t sound coercive to me, I have to tell you.” To that, Clement said the government’s money was still coercive because...

Wrote President Obama in The Audacity of Hope, "I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document, and must be read in the context of an ever-changing world." My instinct is to disagree. Applying the Constitution "in the context of an ever-changing world," it shouldn't escape the justices that the executive branch has lately asserted sweeping powers -- the prerogative to wage war without Congressional approval, to secretly spy on Americans without a warrant, to engage in extrajudicial assassinations carried out by remote-controlled flying machines. James...

The best reason to rule Obamacare constitutional--the one that makes the answer seem obvious--is a matter of common sense. But that's a case counsel isn't allowed to make. The common-sense case goes like this. Contrary to what Justice Kennedy said this week, no important principle is at stake in this decision. For all practical purposes, the economic power of the federal government is no longer constitutionally constrained. Am I forgetting the Broccoli Question? If the government can force you to buy health insurance, what can't it force you to buy? The common-sense answer to this, as we've just seen, is...

When Barack Obama signed the Affordable Care Act into law two years ago, the long-held dream of the American left to move towards some form of universal healthcare coverage became reality. But the hearings this week on the constitutionality of its key provision – the requirement for individuals to purchase coverage or pay a penalty – have led many Democrats to fear they are in for a crushing disappointment. The Supreme Court will not rule on the validity of the law until June. But the oral arguments exposed a willingness by some justices on the court to consider striking down...

After three days of oral arguments at the Supreme Court on Obamcare, liberals seem genuinely stunned that Obamacare has a good chance of going down in flames. They never saw it coming. Consider this exchange between CNN legal analyst Jeffrey Toobin and anchor Wolf Blitzer on the first day of the argument which focused on the individual mandate, provision of Obamacare which forces all Americans to purchase medical insurance or procure it via their employers: TOOBIN: This was a train wreck for the Obama administration. This law looks like it's gonna be struck down. Justice Kennedy, the swing vote, was...

A handful of Senate Democrats sought to assure doubtful liberals that the Supreme Court justices aren’t ready to strike down their crowning achievement, standing before cameras and mics Wednesday in front of the court. One warned that doing so would ruin the court’s credibility. “This court would not only have to stretch, it would have to abandon and completely overrule a lot of modern precedent, which would do grave damage to this court, in its credibility and power,” said Sen. Richard Blumenthal (D), a former attorney general of Connecticut. “The court commands no armies, it has no money; it depends...

Reason's Damon Root attended the final day of the ObamaCare oral arguments at the Supreme Court yesterday and has extensively analyzed the proceedings from earlier in the week as well, and concludes that the White House underestimated the difficulty of its task. While the Left has focused most of its blame on the performance of Solicitor General Donald Verilli, Root says that the problems stem from the arguments that the Obama administration made about the PPACA, and how quickly the justices poked significant holes in them: "If I was in the Obama administration, I would not be comfortable with how...

Video in Story... Supreme Court Justice Elena Kagan defended the expansion of Medicaid under Obamacare today by arguing that "It's just a boatload of federal money for you to take and spend" and concluding "It doesn't sound coercive to me." Kagan made her comments at today's Supreme Court hearing while questioning attorney Paul D. Clement who was presenting an oral argument on behalf of 26 states seeking to have the federal health care law declared unconstitutional: Mr. Clement: "Mr. Chief Justice and may it please the court. The constitutionality of the act’s massive expansion of Medicaid depends on the answer...

I was listening to the tape-delayed Obamacare oral arguments in the car Tuesday when I first heard Justice Breyer's Commerce Clause diatribe, and I meant to post something when I got home. But after making dinner and putting the kids to bed, I forgot.Until today, that is, when I read Jeffrey Anderson's account of "Breyer's Missteps." I think Jeffrey is far too generous to Breyer. Here is a fuller transcript of Breyer's outburst: I look back into history, and I think if we look back into history we see sometimes Congress can create commerce out of nothing. That's the...

When the Supreme Court on Monday began hearing oral arguments in the cases challenging the constitutionality of the Patient Protection and Affordable Care Act—AKA “Obamacare”—Supreme Court Justice Elena Kagan showed up to hear the arguments and gave no indication she would recuse herself from judging the cases even though she had cheered enactment of Obamacare as an Obama political appointee and had personally assigned her top deputy in the Obama Justice Department to defend the law in federal court. A federal law, 28 USC 455, says a Supreme Court justice must recuse from “any proceeding in which his impartiality might...

After yesterday’s heartening arguments, today’s arguments carry even more importance, because it seems likely the Court will actually reach the severability question. If there are political consequences for the Court’s decision on the mandate argued yesterday, there could be even more consequences to today’s arguments. If the law is struck down in its entirety, expect the president to dust off his 2010 State of the Union talking points, which charge the Court with what he calls “judicial activism,” but in reality seem to criticize any court decision that finds a law of his unconstitutional. The justices on both sides seemed...

After a three-day marathon of oral arguments, during which the Supreme Court considered various facets of the Patient Protection and Affordable Care Act, final impressions everywhere are mixed. Liberal supporters of the law have melted into hysterics on live television over the “train wreck” that was Solicitor General Donald Verrilli’s defense. Smeared in red atop the Huffington Post were, “Obamacare on the Brink” and “Disaster.” James Carville now claims that Democrats will “win” if the Court overturns the mandate. Conservatives, meanwhile, are practically dancing in the street at the prospect of an unconstitutional ruling, which once seemed a remote possibility....

Paul Clement is, quite simply, a walking superlative. A wunderkind who at age 34 became deputy solicitor general and then was promoted to the top spot, solicitor general of the United States, becoming the youngest person to hold that post in more than a century. Now 45, he has argued an astonishing 57 cases before the Supreme Court, more than any other lawyer since 2000. And next week, he will lead the challenge to the Obama health care overhaul, in the Supreme Court. Like Donald Verrilli, the man he will be arguing against, Clement has won admiration and respect across...

The surest sign your lawyer hasn't done a good job is when you issue a statement defending his performance.Solicitor General Donald Verrilli’s performance before the court has been widely panned as “weak and ineffectual.” Even liberal commentator Jeffrey Toobin called Verrilli’s arguments “a train wreck for the Obama administration.” But to judge the full measure of just how badly the government did in the last three days, all you have do is read the Administration’s statement to the press. In it, White House Counsel Kathryn Reummler claims that Verrilli “ably and skillfully represented the United States before the Supreme Court.”...

Listening to the oral arguments on the Supreme Court during the last three days is a reminder of why it is, in many respects, the intellectual crown jewel for conservatives, and why it’s vital that those appointed to the high court aren’t simply reliable votes but are capable of making compelling arguments. To hear Justices Scalia, Alito, Roberts, and even Kennedy slice and dice Solicitor General Donald Verrilli was sheer delight, as they exposed one bad argument and one flawed premise after another. Among other things, they pressed Verrilli on what the limiting principle was under the Commerce Clause. “Can...

House Democratic Leader Nancy Pelosi today said she has “no idea” whether the Supreme Court will strike down a key provision of the health care law that she guided through Congress during her reign as speaker of the House two years ago. “I have no idea. None of us does,” Pelosi, D-Calif., said. Pelosi said congressional Democrats “have long believed in judicial review” as part of the country’s constitutional process, but said that as Democrats wrote the Affordable Care Act, “We were careful to honor our Constitution.” “I hope it’s better than [Conyers' 5-4 prediction], because we have one thing...

It’s a testament to Paul Clement’s brilliant advocacy that reporters and spectators left the courtroom feeling less sure of a win for the federal government. Medicaid expansion was easily the hardest of the four issues he had to argue – both the lower courts previously had rejected the states’ premise – and he seemed to provide compelling evidence that coercion may be at play here. Justice Kagan hardly let the word “coercion” leave Mr. Clement’s mouth before she hit him with a very blunt question: “Why is a big gift coercive?” Therein lies the major distinction at the heart of...