Cautiously Optimistic: Obamacare's Bad Day at Court, Part 2 March 30, 2012, Matthew Cochrane
So how did the rest of the Obamacare hearings before the Supreme Court progress since we last checked in? Glad you asked. CNN’s legal analyst Jeffrey Toobin no longer believes the case is necessarily a “train wreck” for the administration. Toobin believes it might now be better classified as a “plane wreck” with the entire law being struck down:
On the final day of the hearings, the Supreme Court heard arguments on the severability of the individual mandate. That is, if the individual mandate is ruled unconstitutional, should the rest of the law be left intact or struck down. The Los Angeles Times’David Savage believed the majority of the court was ready to throw out the entire law after witnessing the hearings:
Picking up where they left off Tuesday, the conservatives said they thought a decision striking down the law's controversial individual mandate to purchase health insurance means the whole statute should fall with it.
The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.
"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.
An Obama administration lawyer, urging caution, said it would be "extraordinary" for the court to throw out the entire law.
Is it time to get cocky and do the happy dance? Not by a frickin’ long shot. I would still place it at about even money that the law is upheld or overturned…but things are looking up. Liberals are still in shock over how the proceedings progressed:
A Wall Street Journaleditorial calls this the “Obamacare reckoning”:
After the third and final day of Supreme Court scrutiny of the Affordable Care Act, the bravado of the legal establishment has turned to uncertainty and in some cases outright panic. Everyone who said the decision was an easy fait accompli has been proven wrong by a Court that has treated the constitutional questions that ObamaCare poses with the seriousness they deserve.
This reckoning has also been a marvelous public education. The oral arguments have detailed the multiple ways in which the individual mandate upsets the careful equilibrium of the American political system. The Obama Administration's arguments in favor of the mandate to buy health insurance or pay a penalty stand exposed as a demand for unlimited federal power.
It hasn’t helped that Obama’s Solicitor General David Verrilli has performed quite poorly, though some believe this is due to the tenuous position he is forced to defend.
NRO’s David French also believes no one could have performed well given the circumstances:
…it’s tough for anyone to perform brilliantly when your argument is weak on the merits. Listening to NPR these last couple days, I was amused as various commentators suggested General Verrilli should have tried various alternative arguments — arguments that were not only unsupported by precedent but would have collapsed under the slightest level of scrutiny from Justice Kennedy or Justice Scalia. It turns out that the argument for Obamacare rests on a functionally unlimited view of federal power — that the Commerce Clause, Necessary and Proper Clause, and New Deal precedent have essentially combined to create a form of de facto police power for the federal government. But if you instead place federal power within the context of enumerated powers, then Verrilli’s argument becomes exponentially more difficult.
Solicitor General Verrilli struggled not because he “choked” — he did reasonably well for the case he had — but because several members of the Court asked him to justify the individual mandate from within the framework of enumerated powers. As with any case, so much depends on framing. And the more this case was framed as it should be — as a battle over the text and meaning of the Constitution itself — the greater the solicitor general’s challenge.
The hearings have now concluded. The Court will now vote on the matter and retreat to their respective chambers to write the various opinions. We should know the results in early June. As some suggested after the previous post, now would be a good time to pray.