March 27, 2012

Reports from this morning's oral argument in the Obamacare case.

Tom Goldstein, mid-argument:
It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant....

When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate. 
And at the end of the argument, Kennedy asked "the most important question," whether "the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment." Goldstein added: "But he didn’t overtly embrace that. It will be close. Very close."

AND: Lyle Denniston says:
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
Denniston thinks the SG failed to convince Kennedy, but the then the lawyers for the challengers somehow undercut their own case in Kennedy's eyes. I need to listen to the recording and read the transcript. I think someone who genuinely hadn't decided might come at the lawyers on both sides with questions containing the doubt that he had about going their way so they could come forward with their strongest arguments.

ALSO: Adam Liptak writes:
“Can you create commerce in order to regulate it?” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verilli Jr., only minutes into the argument.

Justice Antonin Scalia soon joined in. “May failure to purchase something subject me to regulation?” he asked.

Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cell phones. And Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance.

The conventional view is that the administration will need one of those four votes to win, and it was not clear that it had captured one....
Liptak characterizes the argument as "unusually intense and pointed" — and 2 hours long.

98 comments:

Bob Ellison said...

Professor, you write, "I think someone who genuinely hadn't decided..."

Do you think any non-Kennedies up there really haven't decided already? I've heard and read a few opinions on this; optimistic commenters think all the justices are open to argument, and cynics think they've all already chosen their grounds.

What do you think? I'm very curious about how this must look to a legal scholar.

Patrick said...

Conservatives don't like to have to count on Kennedy, but that's where this is. He seems concerned about finding a limiting principle for Federal power, which is good. I suspect his opinion may conjure one up, giving a victory to the Government.

Everyone wants to be loved, including Kennedy. Perhaps he isn't feeling the love from the Right after Heller.

edutcher said...

Apparently Kennedy comes from the "When History calls..." school of government.

Dare we presume it's his right ear that hears it?

Tank said...

It is depressing to think that four Justices are essentially slam dunks on this.

That means that one more lefty would result in virtually no limits at all on the size and scope of gov't via the Constitution.

Ah, what am I talking about? That ship sailed long ago. The commerce clause ate the Constitution for lunch, and we're just living throught he upset stomach.

Sorun said...

It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate.

Why would they even bother to attend the argument? Is Sleepy Ruth snoring or just snoozing quietly.

Alex said...

What's depressing is that 4 justices think there is nothing wrong with Congress creating commerce.

Mark O said...

"but the then the lawyers for the challengers somehow undercut their own case in Kennedy's eyes."

Where does this come from? How do you conclude this?

Bender said...

forcing people to buy burial insurance

That is an interesting question. That is one aspect of human existence where you necessarily burden other people. When you die, you leave behind a dead body that is going to rot if someone else does not bury it or otherwise dispose of it.

Why should we allow the dead to be free-riders???

If the dead can get married, surely government can force people to buy burial insurance.

Roger J. said...

Seems to me that a 5-4 decision, on either side, will not really settle the case. But we will find out on June 30.

Bender said...

By the way, I would not trust the characterization of justices (or prognostication) of anyone in the MSM on this. There is far too much projection and advocacy going on here.

Roger J. said...

What Bender said

Richard Dolan said...

So far in the litigation over ObamaCare, the Gov't hasn't been able to point to any limiting principle to its view of Congress' powers under the Commerce/Necessary and Proper Clauses. No surprise that they couldn't do it today.

So the issue is simply whether that matters. Under a constitution of limited and enumerated powers, it would certainly seem to. But the case has had so many odd turns, and the issues are so impacted by the 'wish fulfillment' theory of constitutional adjudication that Instapundit often decries, that it's anyone's guess whether it will turn out to matter here.

And there are two limiting principles in play here. The first concerns the limits of Congress' powers. The second concerns the limits of the Court's powers. The whole point of originalism, in its many flavors, is to limit the power of courts to override legislative priorities in the absence of clear textual basis in the Constitution. So which limit is more important?

Yesterday's argument (and Ann's post) had some fun pointing out that the Govt's argument about whether ObamaCare involves a tax gets a repeat today. It's as if the law needed to come up with its own convincing version of Schrodinger's cat -- a tax is not a tax, a limit is not a limit, except when it is. It all depends on when you look.

Dante said...

It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate.

The meaning of law changes if you are liberal? That's amazing.

X said...

if I'm gonna be a serf, I'm gonna need a pitchfork.

paul a'barge said...

To those of you who are feeling hopeful that Obamacare and the mandate may be struck down, I remind you:
Kelo

Never forget. The SCOTUS can make bad decisions and those bad decisions can be corrected at the State level but with an enormous amount of work.

It is going to be a huge task to purge America of everything Obama. But it's doable.

Especially if people who voted for Obama the last time do not vote for Obama again (hint:Althouse).

edutcher said...

X said...

if I'm gonna be a serf, I'm gonna need a pitchfork.

Don't forget the torch.

And the serfboard.

Q said...

there are two limiting principles in play here. The first concerns the limits of Congress' powers. The second concerns the limits of the Court's powers. The whole point of originalism, in its many flavors, is to limit the power of courts to override legislative priorities in the absence of clear textual basis in the Constitution. So which limit is more important?


In this case both limiting principles argue that Obamacare should be struck down. The text of the Constitution makes it clear that this law is unconstitutional.

Richard Dolan said...

The transcript of the oral argument is now available on the S Ct website.

PatCA said...

How is Kennedy going to find a limiting principle here? What could possibly limit the government's reach once it controls our health care?

Indigo Red said...

Why shouldn't burial insurance be relevant and required? Death is a state of health.

Scott M said...

And the serfboard.

facepalm /on

Jay said...

“Essentially, the Solicitor General’s performance was so abysmal that it fell to the [Democratic] appointees to make his argument for him,” says Adam Serwer, reporter for Mother Jones.



Isn't that nice?

The left are like so intellectually curious and stuff.

Larry J said...

Why don't we just save the time and money by telling the other justices to go home and let Kennedy decide all cases. The Constitution only means what 5 SC justices say it means, and that often has no similarity to the written document.

WV: FUTSC, yeah, that sounds right.

Bender said...

Anthony Kennedy: Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self . . .
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

--Lawrence v. Texas, 539 U.S. 558 (2003)

Is this the mind-set of someone who thinks that government can dictate or otherwise mandate that individuals engage in certain conduct?

Even though the issue here is the Commerce Clause and Taxing Clause, and the issues of fundamental rights and due process are not before the Court in this case, does it stand to reason that Kennedy will ignore his thinking above in Lawrence and Casey?

Q said...

It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate


Of course they will. It is also essentially clear that they will not ground their opinions doing this in the Constitution, because they cannot. Instead they will will use Wickard as their starting point, and build a castle in the air on top of that shaky foundation.

"We found in Wickard that Congress may do just about anything under the guise of 'regulating commerce', and people who do not engage in commerce still have an impact on commerce, so ...."

On a positive note, if the court does uphold this monstrosity, perhaps Americans will finally lose their peculiar faith in the courts as being "above politics".

Jay said...

"I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.


So totally impartial and objective!

Bob Ellison said...

Q, your last sentence is interesting. I've read that the Court and its members try pretty hard to uphold the Court's reputation. Justices twist and bend a bit to join written opinions, for example, in order to give the appearance of wisdom and collegiality.

So could a liberal justice join an opinion hostile to the ACA in order to uphold the "above politics" myth?

n.n said...

Kennedy seems to think they are manufacturing a crisis to which they will then offer a solution at a price. The price, of course, is the further reduction of liberty coupled with progressive involuntary exploitation. I suppose the ends justify the means, and the consideration for corruption of individuals and society is secondary, if it has any meaning at all.

drozz said...

am midway through, and it appears that verrilli keeps lumping the insured (commerce) and non-insured (noncommerced) into commerce. basically, he is equating commerce and non-commerce.

scalia is leading the charge. sotomeyer is answering for verilli sometimes (which is in her job description. doesn't mean i have to like it. and if the conservatives did the same thing i would be happy).

Ron said...

Why should we allow the dead to be free-riders???

If the dead don't pay, will they be stiffing us? I guess so!

Scott M said...

sotomeyer is answering for verilli sometimes

If, by some set of circumstances, Obamacare survives this SCOTUS case, can we all agree that the left can thus please shut the hell up about Bush v Gore?

drozz said...

also roberts gives a very good explanation of the impact of this mandate and congressional power, starting at page 38

tim maguire said...

It's all a scam. None of the proponents cares in the slightest about the constitution. It's just a nuisance. The only question is, did they dance around enough to provide cover for the justices who themselves would prefer to ignore the constitution?

If referring to the Commerce Clause as the clause that ate the constitution were hyperbole yesterday, it might not be tomorrow.

But aside from the issue of whether not engaging in commerce can be called commerce, where does the interstate part come from? No insurance company crosses a state border.

Rick67 said...

"It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate."

This is one of the most disturbing and significant quotes I've read concerning this SCOTUS case. Really? How is it clear? And why do we already know this? It's like we're saying they've already made up their minds and the various arguments will have no impact whatsoever, and so all this back and forth before the justices is just for show.

Q said...

Kennedy seems to think they are manufacturing a crisis to which they will then offer a solution at a price.


They are, of course. The whole "free rider problem" which this vast sprawling takeover of American healthcare was (supposedly) designed to solve was itself created by previous government involvement in healthcare - specifically, by government ordering hospitals to treat everyone who entered their doors regardless of their ability to pay.

This is relatively recent law - the Emergency Medical Treatment and Active Labor Act of 1986. If SCOTUS wants to do its job it ought to strike down this law as being unconstitutional. Then the problems which Obamacare purports to solve would disappear.

bagoh20 said...

Kennedy: The most powerful man in the world, and possibly in world history.

No man has ever held single-handed sway over so much money and the lives of so many people, ever.

For us to be in that situation now shows better than anything what is wrong with government intrusion. A free market would never give one man such power.

Tim said...

"By the way, I would not trust the characterization of justices (or prognostication) of anyone in the MSM on this. There is far too much projection and advocacy going on here."

Yes, this is exactly right.

The meaning of law changes if you are liberal? That's amazing."

Yes, and everyone knows this. It gives one license to find "penumbras" and "emanations," to suit whatever cause fancies one's heart.

Scott M said...

It's like we're saying they've already made up their minds and the various arguments will have no impact whatsoever, and so all this back and forth before the justices is just for show.

Rick, please check the street outside for black vans. You may want to write up a "If you're reading this than I'm..." letter.

bagoh20 said...

Some may say: what about Mao, or Stalin?

Exactly!

Tim said...

"For us to be in that situation now shows better than anything what is wrong with government intrusion. A free market would never give one man such power.

Of course not. More the reason for the Left to empower government at freedom's expense. It's *much* easier to use public power to steal stuff you didn't earn once it's in the public's domain.

And everyone who has ever voted Democrat since '32 has known this.

If they didn't, they're either ignorant or stupid.

drozz said...

interesting. quite a few of the justices are taken with the fact that congress never called it a tax. verilli acknowledges the point as necessary for achieving its goal (i.e. passage). could this be a way out for the supremes?

in other words, since congress (and as scalia stated, obama) did not deem this as a tax, its a penalty.

uh-oh.

Q said...

All you ever wanted to know (and probably much more) about the Emergency Medical Treatment and Active Labor Act.

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1305897/

damikesc said...

How sad is it that the liberal members of the Court have their minds so made up before the first word is uttered that they are NEVER in play in any decision?

Can somebody differentiate knowledge with simple hackery?

The arguments for the IM make no logical sense --- and never really have at any point. Health insurance is specifically not interstate.

Tim said...

"They are, of course. The whole "free rider problem" which this vast sprawling takeover of American healthcare was (supposedly) designed to solve was itself created by previous government involvement in healthcare - specifically, by government ordering hospitals to treat everyone who entered their doors regardless of their ability to pay."

While the "free-rider" problem is real enough, proponents of Obamacare citing it is complete bullshit.

No one will actually pay less for their health care under Obamacare than they are paying now.

Everyone who is paying for health care now will pay more under Obamacare than they would have without Obamacare.

Total health care costs under Obamacare will increase; per capita health care costs under Obamacare will increase.

The "free-rider" problem was always a dishonest feint, grist for the gullible who thought themselves "responsible," to distract them from the Congressionally-enacted theft before their very eyes.

Bender said...

Kennedy seems to think they are manufacturing a crisis to which they will then offer a solution at a price

And Scalia rams home the OBVIOUS answer to the "problem" --

GENERAL VERRILLI: in the health care market, you're going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow -- that -- to which we've obligated ourselves so that people get health care.

JUSTICE SCALIA: Well, don't obligate yourself to that.

pp. 19-20

Government has become an "officious intermedler" in the healthcare arena. It has barged in and voluntarily decided to pay the bills for those who don't or won't do so themselves.

And now Obama is acting like this is a fundamental obligation of government, rather than a voluntarily assumed activity, such that because government is required to pay for it, it can force those who don't want or need "insurance" to buy it (and then all that they buy is the right to pay premiums, not the right to actually obtain care).

If government paying the bills is the problem, then the answer is for the government to stop paying the bills.

Matt said...

The mandate doesn't force anyone. It requires everyone to pay into the health care market which they already participate in, or eventually will.

If the law was written to make people buy only government issued health insurance then I could see a good [but different] argument against it. But it doesn't do that. People still have a very wide choice - like now. Only potentially the rates would come down. But even better there would be no more denying people because of pre-existing conditions. I had a friend who couldn't get insurance coverage because she had ulcers - a genetic ocndition.

AlphaLiberal said...

Riddle me this:
Why is the Massachusetts health care mandate not an issue at all?

Why has it not been challenged? Or has it?

Curious.....

Bob Ellison said...

I'm listening to the audio. Verrilli's vocal performance is terrible. He stammers, he doesn't seem to understand his voice well, and he comes across as a weak advocate for those purely audio-related reasons. The justices, speaking confidently and extemporaneously, sound so much better than Verrilli.

Bad voice; bad acting; bad audio. That's a big part of why Toobin and others are saying the Government flailed so badly today.

Bender said...

One aspect of the essence of the contraceptive mandate issue makes an appearance at page 31.

CHIEF JUSTICE ROBERTS: Well, but it's critical how you define the market. If I understand the law, the policies that you're requiring people to purchase involve -- must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment, substance use treatment or pediatric services, and yet that is part of what you require them to purchase. . . . But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you're requiring people who are not -- never going to need pediatric or maternity services to participate in that market.

Rabel said...

The burial insurance question is a much better hypothetical than the one about a broccoli mandate. Alito scores again.

Death is a bitch of a pre-existing condition.

First they came for the Zombies and I said nothing for I was not a Zombie.

Then they came for the Vampires and ...

Chip Ahoy said...

We need not tediously parse the questioning for clues when we're being spoken to directly.

'Unique enough.'

He's signaling. He knows that we know that he knows better than to use a nonsense phrase within a serious appearing question and that his signal to us.

Unique is uniquely silly among words when paired with a qualifier and everybody knows that so we see the question is flatly not serious.

This is the deciding vote on a court split along partisan lines. This one word 'enough' is signaling the deciding vote is negative. Therefore, and it makes me sad to say this, we must conclude the single-payor mandate will be rejected for now.

drozz said...

2 notes:
as stated above, the burial insurance hypothetical proposed by scalia is dead on.

they should have made verrilli answer the question as to where congressional power ends

Rabel said...

Alpha,
Re the Mass mandate, it might have something to do with this:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Bender said...

CHIEF JUSTICE ROBERTS: So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?
GENERAL VERRILLI: No, Mr. Chief Justice. think that's different.
p.6

GENERAL VERRILLI: Telephone rates in this country for a century were set via the exercise of the commerce power in a way in which some people paid rates that were much higher than their costs in order to subsidize --
JUSTICE SCALIA: Only if you make phone calls.
GENERAL VERRILLI: Well, right. But -- but everybody -- to live in the modern world, everybody needs a telephone.
p.34

It is usually best when the advocate remembers what he said earlier.

drozz said...

clement smacks a liner to the corner on this one (p 78-79):

Once you're in the commerce power, there is not -- this Court is not going to police that subject maybe to the Lopez limit. And that's exactly why I think it's very important for this Court to think seriously about taking an unprecedented step of saying that the commerce power not only includes the power to regulate, prescribe the rule by which commerce is governed, the rule of Gibbons v.
Ogden. But to go further and say it's not just prescribing the rule for commerce that exists but is the power to compel people to enter into commerce in the first place.

nice

Tim said...

"If the law was written to make people buy only government issued health insurance then I could see a good [but different] argument against it. But it doesn't do that. People still have a very wide choice - like now."

This is just false.

First, the ACA severely restricts the number of choices available to people, including the choice not to purchase at all. Second, under the ACA, the insurance is effectively "government issued health insurance," as only government-approved health insurance can be sold, and it must be bought.

The distinction under the ACA between a "government issued health insurance" and a "non-government issued health insurance" that one *must* buy under the ACA is impossible to make.

Bender said...

JUSTICE SCALIA: You could solve that problem (of costs increasing because people with pre-existing problems did not buy insurance until they needed care) by simply not requiring the insurance company to sell it to somebody who has a -- a condition that is going to require medical treatment, or at least not -- not require them to sell it to him at -- at a rate that he sells it to healthy people.
But you don't want to do that.

GENERAL VERRILLI: But that seems to me to say, Justice Scalia, that Congress -- that's the problem here. And that seems to be --

JUSTICE SCALIA: That seems to me a self-created problem.
p.37

garage mahal said...

I think it's so effing funny that after all ObamaKKKare rigmarole, Republicans are going to nominate RomneyCare!

Q said...

The mandate doesn't force anyone. It requires everyone to pay into the health care market which they already participate in, or eventually will.


I'm not seeing the distinction being "requiring" somebody to do something and "forcing" them to do it.

It is not true that "everyone" will eventually "participate in" the healthcare "market".

If I die of a heart attack today, I will die without ever having "participated in the healthcare market". You can say that "many people" or perhaps even "most people" will participated in the healthcare market" at some stage. But not all of them.

To the extent that most people will eventually "participate in the healthcare market", that is a function of previous misguided government decisions. The simple solution there is to repeal those earlier government actions.

Scott M said...

The simple solution there is to repeal those earlier government actions.

That will happen roughly about the time that Minnisota Milita money becomes valid currency.

Bender said...

Ouch, ouch, ouch.

GENERAL VERRILLI: With respect to the question of characterization, the -- this is -- in the Internal Revenue Code, it is administered by the IRS, it is paid on your Form 1040 on April 15th, I think --

JUSTICE GINSBURG: But yesterday you told me --
p.45

JUSTICE SCALIA: The President said it wasn't a tax, didn't he?
p.46

Q said...

The "free-rider" problem was always a dishonest feint, grist for the gullible who thought themselves "responsible," to distract them from the Congressionally-enacted theft before their very eyes.



That's true, of course, which is why I said that Obamcare was supposedly designed to fix this problem. The left wants government run healthcare because the left wants government run everything. The "free rider problem", like the pre-existing conditions problem, is simply an excuse to do what they want to do anyway.

But legally speaking they are not admitting this. In their arguments before the court they are pretending that the free-rider-problem is one they are desperately worried about solving. So it is worth pointing out that it is a problem which government created in the first place, and which can easily be solved by scrapping EMTALA.

AlphaLiberal said...

Rabel, thanks. I thought that would be a likely answer. Re: "Power not reserved..."

So, if I understand the argument correctly, then, it's okay for a state government to mandate commerce (or eating broccoli) but not for the federal government? The same federal government which is empowered to regulate interstate commerce, no less.

Q said...

That will happen roughly about the time that Minnisota Milita money becomes valid currency


There is zero constitutional basis for requiring privately run hospitals to treat people for free.

The feds might as well require every doctor in the US to treat X number of people free of charge each year.

While they are at it they can require every lawyer in the US to do X hours of pro bono work each year, and not allow them to pick they people they do it for either.

Q said...

it's okay for a state government to mandate commerce (or eating broccoli) but not for the federal government?


What was so difficult about that?

You think you're being clever, but you're really not pulling it off.

walter said...

Forgetting for a moment her lack of experience as a judge, why on Earth isn't Kagan on the bench for this one? I mean..is there an identifiable threshold and enforcement mechanism for proper recusing or whatever it's called? Or is it strictly voluntary?

-----------------------
"Justice Ginsburg cited a brief filed to the court suggesting that those who go without health insurance raise costs for other consumers. Health care is different from other products, she suggested, because uninsured people are passing their costs to others.

“When disaster strikes, you may not have the money,” Justice Ginsburg said.
--------------------------

"Health care is different from other products, she suggested, because uninsured people are passing their costs to others."

Actually, at that level of analysis, seems no different than any other product where volume is concerned. products can be made and sold for less when more people purchase them. i.e. economies of scale. You focus on the idea that more peopel buying makes it less expensive or..focus on "lack of purchase" making it more expensive. For example, if everyone bought a Volt, they could be made and sold for less. As it is, we directly transfer wealth to subsidize small numbers of purchases. Oh, damn...I see where this is going. Shhhh.

A. Shmendrik said...

I love the smell of napalm in the morning!

The SG got sorta choked up right here at the beginning, and it didn't get any better.

Q said...

Riddle me this:
Why is the Massachusetts health care mandate not an issue at all?



There is nothing stopping you from appealing that law to the US federal courts, up to an including the US Supreme Court.

So riddle me this - why haven't you done so?

Dante said...

Jay, while I do not like Kagan at all, this quotation of hers:

I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.

Could merely indicate appreciation of a hard to achieve political feat.

Scott M said...

So, if I understand the argument correctly, then, it's okay for a state government to mandate commerce (or eating broccoli) but not for the federal government?

Can you point to one state constitution, charter, or whatever, that would allow you to force state residents to eat broccoli? I don't know your education background, AL, but I'm willing to bet you're not an expert at all 57 state constitutions.

Q said...

Justice Ginsburg cited a brief filed to the court suggesting that those who go without health insurance raise costs for other consumers. Health care is different from other products, she suggested, because uninsured people are passing their costs to others.



They are only doing this because the federal government passed a law saying that uninsured people can get free health care and pass their costs on to others.

How does that story go - a man murders his parents and pleads for mercy from the court on the grounds that he is an orphan?

The governments position here is exactly like that. Having done Stupid Thing A, they now cite this as a reason why they should be allowed to do Stupid Thing B.

damikesc said...

AL, hey, States can require immunizations. Know who cant? The Feds.

States have a lot of power inside their borders.

drozz said...

carvin starts off on very shaky ground. the point he was trying to make is that since many things can be tangentially connected to each other, the mandate won't stop at healthcare.

he finally finds his voice around page 88 with his exchange with justice breyer.

he then wavers a bit with a few hypotheticals, but finishes very strong in his dialog with justice kennedy starting around p. 104.

in review of the second half, it just seems that the four left leaning justices were finding reasons why congress should have this power based on the specific problem.

personally, thats unsettling.

Bender said...

Yeah, since my own personal interests are so much at risk, I'm not too happy with Clement making concessions here and concessions there.

Bender said...

Re: pages 60-62, wherein Justice Breyer forgets that he is a judge, going on and on and on and on and on and on and on and on and on as if he were arguing the case.

bgates said...

Why should we allow the dead to be free-riders???

Dems would never go for it. The deceased are an important constituency for them.

Q said...

in review of the second half, it just seems that the four left leaning justices were finding reasons why congress should have this power based on the specific problem



The four left leaning justices were always going to find that Congress had this power. The specific justification they would use was the only remotely interesting variable.

drozz said...

bender:
it's kind of what they are supposed to do.

scalia did this in the first half.

bgates said...

I don't think I ever saw an answer to the question why, if the feds have the power to compel individual Americans to purchase goods or services under the commerce clause, and the text of the commerce clause is "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes", and the word "Commerce" appears nowhere else in the Constitution -

can't Congress force foreigners to buy things too?

damikesc said...

After reading some of the transcript, has a Republican ever had a SCOTUS justice carry their water the way Sotomayor did for Obama today? It was sad.

Obama really needs to lose in November?

traditionalguy said...

The God Like authority long granted to Doctors and Psychiatrists in our culture is why the God Obama feels a need to make himself our Doctor-in Chief.

Being the mere Commander-in-Chief while he phases out our once powerful military is not what he plans his role to be.

How many overt Propaganda pieces did we see published this winter naming conservatives as mentally ill because they refuse to see the Crisis Warming of an atmosphere that has actually been cooling for the past 17 years?

We live in BIG LIE MANDATE LAND now. If you don't believe the Ruler's imaginary Crises du jour, you will be arrested for being a mentally ill danger to society. That will require Homeland Security level Doctor exams by Doctors working for a Nationalized Health Care Agency.

Rabel said...

You guys (and gals) criticizing SG Verilli's presentation must be wrong.

Because NPR said when he was appointed:

" At 54, Don Verrilli Jr. stands tall and calm in the Supreme Court chamber, his salt and pepper mustache the only thing about him that bristles. His deep, baritone voice suggests to the justices that he is the essence of reasonableness. There are no histrionics. Indeed, if he gets backed into a corner, his voice just gets deeper. Only the occasional, needless throat-clearing betrays any nerves at all."

Nina Totenberg wrote that so I know it a true and totally objective judgment.

Alex said...

Can someone explain Federalism to the trolls.

Scott M said...

Can someone explain Federalism to the trolls.

Speaking of which, where did Alpha go after people answered his question? Back to Media Matters comments section for talking points?

Rabel said...

Alpha,

You're welcome. I'm always happy to help.

And you make a very good point. Assuming, of course, that nothing in the U.S. or state constitution prevented such, Big Broccoli could push an in-state consumption mandate through an easily corruptible, veg-friendly state legislature.

God help us if Big Asparagus gets involved.

bgates said...

God help us if Big Asparagus gets involved.

Asparagus?

Have you seen what they charge for arugula?

walter said...
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walter said...

"can't Congress force foreigners to buy things too?"

Hmmm. Especially countries receiving aid from our Federal Gov...i.e. strings attached. Pay to play.

Tim said...

Alex said...

"Can someone explain Federalism to the trolls."

Hmmm. If only it were possible.

bagoh20 said...

"Can someone explain Federalism to the trolls."

If you like state managed health insurance:

1) Move to Massachusetts (Titus will welcome you with a parade)

2) Get it passed in your own state.

The rest of us can have it our way too in our own states.

See how that works? Everybody who is not a totalitarian is happy.

Are you a totalitarian or just hate happiness?

mccullough said...

If the mandate is upheld it will be Roberts who writes the opinion. He will not let Kennedy come up with some nonsense opinion. It's either getting struck down or Roberts will write an intelligent opinion that at least contains some limiting principle.

bagoh20 said...

"an intelligent opinion that at least contains some limiting principle."

For a while,

Didn't we already have a limiting principle for hundreds of years? Maybe we should use another term for this I suggest "ephemeral principle".

walter said...

Again...isn't there cause for Kagan to recuse herself? Or..give her a little help? She's learning on the job after all.

Blue@9 said...
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Blue@9 said...

Now I know how Obama is going to get rid of all those Chevy Volts. Follow along, liberals:

1) Everyone uses energy. Everyone relies on transportation.

2) It's within Congress's Commerce Clause power to fully regulate energy and transportation.

Ergo,

3) Every adult citizen of the United States is required to show proof of purchase a Chevy Volt. Absent such proof, you must pay a $2000 penalty.

If the Obamacare mandate is constitutional, why not a Volt mandate?

You heard it here first.

holdfast said...

So is it just me or are Toobin and the other liberal "legal scholars" laying the groundwork for their new, backup meme "it was bad lawyering, not a bad law"? Push hte poor ol' Solicitor General under the bus with Rev Wright and Obama's Grandma?

And why is he called a "solicitor" anyway? Where I'm from solicitors are the kind of lawyers who don't go to court. Why not the "Barrister General"? Sounds cooler anyway.

walter said...

@Blu@9,
Hint at 2:12 PM

srhcb said...

Obamacare is going down 6-1