Thread: SCOTUS Day 3: Individual Mandate is Toast; What about the rest of the law?

SCOTUS Day 3: Individual Mandate is Toast; What about the rest of the law?







Justices poised to strike down entire healthcare law

'Plane Wreck' for Obama Administration

Judge Napolitano: Justice Kennedy’s Questioning of Health Care Bill May Prove to Be a Bad Day for Government (Thanks to JohnPhillipSousa for the video). Day 3 tomorrow.


[Politico] Conservative justices attacked the heart of President Barack Obama’s health care law Tuesday, expressing deep skepticism that the government can force Americans to buy insurance. On the second day of oral arguments, the Supreme Court grappled for two hours with that central element of the landmark legislation: the so-called individual mandate. However, through their comments and questions Tuesday, the justices signaled they may defy those expectations.

• Politico: Conservative justices skeptical of individual mandate
• Wa Po: Will the mandate stand?
• WSJ Live Blog
• USA Today Live Blog

SCOTUS Day 3: Individual Mandate is Toast; What about the rest of the law? - Open Thread | Peace . Gold . Liberty | Ron Paul 2012

Mar 28, 2012

"If I was in the Obama administration, I would not be comfortable with how the last three days went."

Reason's Damon Root was in attendance for the third and final day of oral arguments before the Supreme Court on the Patient Protection and Affordable Care Act (ACA), which focused primarily on the issue of severability, which brings into question whether the individual mandate be excised from the law, or if the law in its totality must be struck down.

Now that the case is in the hands of the Court and a decision isn't expected until late June, Root thinks the Obama administration has reason to be concerned not only because their Solicitor General's performance rated poorly, but because "their arguments were nowhere near as strong as they thought they were going to be."

Runs about 3 minutes.

Produced by Anthony L. Fisher, shot by Josh Swain and Fisher.

For more of Reason.tv's coverage of Health Care debate, go here:
Reason.tv on Health Care - YouTube

White House Tries to Rebrand Mandate

Earnest Calls Government Mandate 'Personal Responsibility Clause'



BY: Bill McMorris -

March 28, 2012 3:25 pm

The Obama administration is now referring to Obamacare as a “bi-partisan bill” and calling the unpopular individual mandate “a Republican idea,” following three days of tough questioning by the Supreme Court.
“The Affordable Care Act is a bipartisan plan and one that we think is constitutional,” Deputy White House press Secretary Josh Earnest told reporters on Wednesday afternoon.

No Republican voted for the Affordable Care Act on final passage.

He also referred to the individual mandate as the “individual responsibility” clause of the bill, in an attempt to distance the administration from the term individual mandate.

“The administration remains confident that the Affordable Care Act is constitutional; one of the reasons for that is that the original personal responsibility clause…was a conservative idea,” he said.

Conservatives have blasted the administration for the individual mandate and only one Republican voted for Obamacare in both houses of the legislature.

Earnest deflected questions about the future of the law and Solicitor General Donald Verrilli. Many analysts have said that the court is likely to overturn Obama’s signature law after conservative members of the court, as well as Obama appointee Justice Sonia Sotomayor, bombarded Verilli with blistering questions over the mandate.

“There have been lower court cases where conservative judges have posed difficult, tough questions to Department of Justice lawyers … and conservative judges, who posed tough questions ended up upholding the Affordable Care Act,” he said.

Some also questioned the Verrilli’s performance, as he stumbled and coughed at times in defending the bill on Tuesday. Earnest defended the attorney.

“He’s one of the brightest legal minds in Washington, D.C.,” he said. “He gave a very solid performance before the Supreme Court, that’s just a fact.”

The spokesman did not know if President Obama had listened to trial transcripts, as he was flying back from Seoul, South Korea. He repeatedly said that the administration is not preparing contingency plans if Obamacare is struck down.

“We are focused on implementing all of the provisions of the law because they are important benefits,” he said, adding “we’re not, no,” when reporters asked again if alternative strategies are being considered.
“If there’s a reason or a need to consider contingencies down the line, then we will.”

The Heritage Foundation has been credited with introducing the concept of the individual mandate during the debate over Hillary Clinton’s healthcare reform almost 20 years ago, but has since come to oppose it. It is not the only group that has changed sides on the issue: Obama slammed then-rival Hillary Clinton over the mandate on the campaign trail.

“We still don’t know how Sen. Clinton intends to enforce a mandate … you can have a situation, which we are seeing right now in the state of Massachusetts, where people are being fined for not having purchased health care but choose to accept the fine because they still can’t afford it, even with the subsidies,” Obama said. “They are then worse off: They then have no health care, and are paying a fine above and beyond that.”

The mandate helped Obama win favor among the healthcare industry, which donated $2.3 million to his 2008 campaign. His fundraising among the healthcare industry has not slowed in 2012, with Obama raking in more than $360,000 from drug makers.

The Supreme Court finished its final day of hearings concerning Obamacare today, with arguments focused on whether a rejection of the individual mandate would invalidate the entire law.
The court is expected to issue a ruling in June.

White House Tries to Rebrand Mandate | Washington Free Beacon

Justices poised to strike down entire healthcare law

Comments 1350

Demonstrators pray outside the U.S. Supreme Court on the third day of oral arguments over the constitutionality of the Patient Protection and Affordable Care Act. (Chip Somodevilla / Getty Images / March 28, 2012)

By David G. Savage March 28, 2012, 8:35 a.m.

Reporting from Washington— The Supreme Court's conservative justices said Wednesday they are prepared to strike down President Obama’s healthcare law entirely.

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. About 2.5 million young people under age 26 are on their parents' insurance now because of the new law. If it were struck down entirely, "2.5 million of them would be thrown off the insurance rolls," said Edwin Kneedler.

The administration indicated it was prepared to accept a ruling that some of the insurance reforms should fall if the mandate were struck down. For example, insurers would not be required to sell coverage to people with preexisting conditions. But Kneedler, a deputy solicitor general, said the court should go no further.

But the court's conservatives said the law was passed as a package and must fall as a package.

The justices are scheduled to meet Wednesday afternoon to debate the law's Medicaid expansion.
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david.savage@latimes.com

Justices poised to strike down entire healthcare law - latimes.com

Health care law endures tough questioning from swing justice at Supreme Court showdown

By Lee Ross
Published March 27, 2012
| FoxNews.com
9530 comments
Video at the Link



The man often known as the Supreme Court's swing justice posed tough questions about the scope of the controversial health care overhaul Tuesday, suggesting he might have doubts about its validity.

Justice Anthony Kennedy did not fully tip his hand as to how he might ultimately vote in the case -- leaving all sides to ruminate for the next few months until an expected summer ruling.
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The Meaning of a Mandate
Chris Stirewalt, Stephen Hayes and Alabama AG Strange discuss the individual mandate.



On this most important day of arguments for the landmark case, most of the high court bench was thoroughly engaged for a two-hour debate over the constitutional merits of President Obama's health care law. Based on the tenor of Tuesday's arguments, the justices appeared to be closely divided and this case, as do so many other close ones at the high court, may ultimately come down to Kennedy's vote.
Early in the arguments, the veteran justice cut to the heart of the debate over the so-called individual mandate -- which was the focus of Tuesday's hearing -- asking the federal government's attorney to explain what constitutional power the government had to force all Americans to obtain health insurance.

"Can you create commerce to regulate it?" Kennedy asked Solicitor General Don Verrilli.

That question addressed the key issue about whether Congress exceeded its regulatory authority under the Commerce Clause, which gives the federal government the power to pass laws governing economic activity among the states. Verrilli said that's not happening with the mandate; rather it is a regulation of a pre-existing health care marketplace.

Later, Kennedy described the law as unique and said the mandate "is different from what we have in previous cases -- and that changes the relationship of the federal government to the individual in the very fundamental way."

He acknowledged the Court normally gives Congress the benefit of the doubt on laws that it passes, but in this instance there was a "heavy burden of justification" necessary for supporters of ObamaCare to prove its legal worth. He also wondered about what limits to federal power would be in place if the court signed off on law.

What's not clear is if the answers provided by Verrilli about the narrowness of the law, or much else, satisfied Kennedy's apparent doubts.

The comments and questions from the other justices generally suggested they would fall along familiar ideological divisions. If that ultimately happens, it will be a 5-4 decision on this fundamental issue that will determine the law's fate.

At the start of his arguments, repeatedly interrupted by a scratchy throat, Verrilli plainly stated that "the Affordable Care Act addresses a fundamental and enduring problem in our health care system and our economy." That problem the ACA attempts to fix is the ability of insurance companies to drop or deny coverage based on preexisting medical conditions or other reasons.

The government's fix involved a requirement that all Americans obtain health insurance. This solved two problems for lawmakers. It would lead to health coverage for all people-a major issue for the president's base -- and it also covers the increased insurance costs by forcing these newly insured people, including many healthy people with minimal health care needs, into the system.

"So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve," Justice Samuel Alito said.

But Justice Ruth Bader Ginsburg likened the ACA to the Social Security Act, which the Court ruled constitutional, as an example of where younger healthy people cover the payouts for older and infirm Americans.

In this context, she offered a simple explanation for that practice: "If you're going to have insurance, that's how insurance works."

It's also an area that Justice Elena Kagan touched upon. "And this is especially true, isn't it, General Verrilli, because in this context, the subsidizers eventually become the subsidized?" she asked.
Verrilli agreed, saying people never know when they'll need coverage.

It was an answer Justice Antonin Scalia jumped on.

"We're not stupid. They're going to buy insurance later. They're young and need the money now. When they think they have a substantial risk of incurring high medical bills, they'll buy insurance, like the rest of us," he said.

Unlike Scalia and Alito who were more animated with their comments expressing doubt about the law's validity, Chief Justice John Roberts plainly offered some of his own concerns that at times mirrored Kennedy's.

He used the phrase "all bets are off" twice when talking about the ways future Congresses will attempt to fix perceived problems if the law survives. "There's this health care market.

Everybody's in it. So we can regulate it, and we're going to look at a particular serious problem, which is how people pay for it. But next year, they can decide everybody's in this market, we're going to look at a different problem now, and this is how we're going to regulate it. And we can compel people to do things -- purchase insurance, in this case. Something else in the next case, because you've -- we've accepted the argument that this is a market in which everybody participates."

Some of the justices wondered whether the government could compel people to exercise, eat broccoli or buy certain cars if the mandate is upheld. Verrilli maintained that wouldn't be the case.

"The (health insurance) market is regulated at the federal level in very significant ways already," Verrilli told the chief justice. "The question is, is there a limit to the authority that we're advocating here under the commerce power, and the answer is yes, because we are not advocating for a power that would allow Congress to compel purchases."

The government's defense of the ACA also relied upon the Constitution's Necessary and Proper Clause and taxing power. Those issues did briefly come up during the two-hour long arguments but were very much overshadowed by the debate over the mandate's relationship to federal authority in regulating commerce.

Justice Clarence Thomas, as is his custom, did not speak in the courtroom. But his views on the expansion of the Commerce Clause have been clearly articulated in past cases where he objected to increased federal power. Based on those writings, it is widely assumed that he will similarly object to the scheme presented here.

Lawyers for the 26 states opposed to ObamaCare and the National Federation of Independent Businesses also faced tough questions from the justices. But by the time each took the lectern in the second hour of arguments, the Court's direction seemed clear.

For the second day in a row, Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius were in the courtroom. A number of prominent lawmakers from Capitol Hill were also in attendance. Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee and major supporter of the law, looked concerned over the questions Kennedy asked.

Wednesday's final day of arguments will be split into two sessions. The first will examine whether the rest of the ACA is severable from the individual mandate if the high court strikes down that provision.

The last case looks at the law's provision to expand Medicaid coverage. The challenging states call that part of the law coercive.

Click here for full coverage of the ObamaCare hearings.
Click here for the full transcript of the hearing.
Click here for audio of the hearing.

Fox News' Shannon Bream contributed to this report.

Health Care Law Endures Tough Questioning From Swing Justice At Supreme Court Showdown | Fox News

Court signals entire health care law might need to be struck down

NBC Video at the link:

NBC Politics - Court signals entire health care law might need to be struck down

Judge Napolitano Day 2 Analysis of Supreme Court Health Care Debate 1/2

Judge Napolitano Day 2 Analysis of Supreme Court Health Care Debate 2/2

Cuccinelli Predicts Obamacare Won't Survive After Court Arguments

Thursday, 29 Mar 2012 10:12 AM
By John Bachman

Virginia Attorney General Ken Cuccinelli tells Newsmax.TV that three days of Supreme Court arguments about Obamacare have made it obvious that a new law is needed.

After listening to the testimony and justices’ questions, Cuccinelli expressed optimism about challenges he and other attorneys general have filed against President Barack Obama’s signature legislation.

“I’m as upbeat as I have been in the whole two years and five days now since we filed,” Cuccinelli told Newsmax in an exclusive interview.

Story continues below the video.
Video at the page link

Cuccinelli, who was in the Supreme Court hearing room for the arguments on Monday and Tuesday and listened to live audio feed on Wednesday, said the discourse proved to him that "the least that would be stricken is the mandate along with guaranteed issue.”

Guaranteed issue refers to the portion of the Affordable Care Act that prohibits insurance companies from excluding patients from coverage for pre-existing conditions.

When asked whether certain portions of the law, such as young people’s being able to stay on their parents’ insurance plans, could survive if the mandate is stricken, Cuccinelli said: “I think an entirely new law might be necessary.”

Cuccinelli also suggested a few alternatives to the Affordable Care Act that he says will lower the cost of healthcare for all Americans.

“If we knocked those barriers down, then I could buy it anywhere, and all the Virginia companies would have to compete with all the other companies in all the other 49 states,” Cuccinelli said.

“Make people equal to corporations in the tax treatment of our healthcare and health insurance. Companies get a tax break for providing their employees health insurance, but we individuals don’t get a tax break for providing it for ourselves. That’s ludicrous,” Cuccinelli told Newsmax.

It was “humbling to sit inside the Supreme Court and listen as history was being made,” he said. “I have never, ever been involved in anything, and probably never will be involved in anything where so much is at stake relative to our country.”

Cuccinelli, who recently filed his paperwork to run for governor next year, said he will focus his efforts this year on making sure the Republican nominee for president wins Virginia. He also plans to ensure that a Republican candidate defeats Democrat Tim Kaine in the commonwealth’s U.S. Senate race before he gears up his own campaign after the election in November.

Cuccinelli Predicts Obamacare Won't Survive After Court Arguments

Related: Chief Justice Says States Have Compromised Their Sovereignty