United Liberty

Yesterday was an interesting day at the Supreme Court. Justices heard the case on the individual mandate from both sides, with Solicitor General Donald Verrilli arguing the case for central part of ObamaCare and Paul Clement and Michael Carvin presenting the case against it. If you support the individual mandate, then it wasn’t a good day. If you oppose ObamaCare, there was reason for optimism that it will be struck down.

In case you missed it, you can listen to the oral arguments below and read the transcript from the Supreme Court’s website:

During his time, Solicitor General Verrilli just bombed. Observers say that he was nervous and did not present the Obama Administration’s case well. It was during the first half of the arguments, when Verrilli presented his case, that it seemed that the individual mandate was indeed on the ropes. Jeffrey Tobin, a legal analyst for CNN, that the Obama Administration’s case was a “train wreck,” reversing his prediction that the individual mandate would be upheld.

Justice Anthony Kennedy, who is seen as the swing vote in the case, pressed the Solicitor General to justify the individual mandate, notes Philip Klein:

Justice Anthony Kennedy, long seen as the swing vote in the case, repeatedly said that the mandate was unprecedented and that the government had a “heavy burden” to justify it. He said that it changed the relationship between the individual and the government in a “fundamental” way.

Justices Antonin Scalia and Sam Alito were noticably skeptical of the government’s case, both pointing out that if the Obama Administration’s argument was adopted by the court, that there would be no real limitation on congressional power.

There was speculation that Chief Justice John Roberts could also be convinced that the individual mandate fell within the Commerce Clause, but his questions to Verrilli were pointed, though he had some tough questions for Clement and Carvin. But Klein points out the distinction in Roberts questions to the two sides, which indicate that he doesn’t buy the Obama Adminisation’s arguments.

And while Kennedy was very concerned about the expansion of the Commerce Clause this heavily into the lives of Americans, Lyle Denniston wites that his vote is still hard to read at this point:

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., and a majority 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.

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in and expecting the demise of the mandate seemed decidedly premature.
[…]
Later on, it would appear that Kennedy had some doubt about whether the health insurance market was, in fact, a unique phenomenon.  But near the end of the entire argument, when challengers’ lawyer Michael A. Carvin was at the lectern, Kennedy made a comment that he may have started to see the issue differently.

To understand its significance, the context of this later remark is important.   Justice Breyer had again, as he had done several times during the challengers’ argument, stressed that Congress was confronted with a situation in whch some 40 miliion people did not have insurance, and that gap was, in fact, having an effect on commerce that was substantial.   “So,” Breyer said, “I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, bujt simply whether those decisons of that groujp of 40 milliion people substantially affect the interstate commerce that has been set up in part” through a variety of government-sponsored health care delivery systems.  That, Breyer told Carvin, ”the part of your argument I’m not hearing.”

Carvin, of course, disputed the premise, saying that Congress in adopting the mandate as a method to leverage health care coverage for all of the uninsured across the nation.  Kennedy interrupted to that that he agreed “that’s what’s happening here.”  But then he went on, and suggested that he had seen what Breyer had been talking about.   “I think it is true that, if most questions in life are matters of degree,” it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That’s my concern in the case.”

That was the core of Verrilli’s claim about what Congress had confronted,  and Kennedy had just phrased it — not as the government’s argument — but as his own perception.  In both tone and content, it was a sudden change.

The Obama Administration was relying on cases that many of the conservatives on the Supreme Court dismissed. Kennedy may be searching for a principle of where congressional power ends, but Verrilli wasn’t able to give him anything. If Kennedy finds one that he can live with, the mandate lives on. However, if there is no limitation in prior precedent, Kennedy will vote against it.

And Doug Mataconis notes that there may be one other influence on Kennedy’s decision in the case. Tomorrow, the Supreme Court will hear arguments on severability, meaning that if the individual mandate is struck down, would the rest of the law have to go with it:

In the morning, the Court considers what may indeed end up being the most important issue of the week. Assuming for the sake of argument that today’s argument was an indication that the mandate will be struck down, tomorrow morning’s argument considers the question of what then happens to the PPACA as a whole. One wonders if Justice’s Kennedy’s opinion on the mandate will, in the end, be influenced by the question of whether striking down the mandate means the Court must also strike down the entire PPACA.

If they can justify keeping other parts of the law in place, Kennedy may feel more comfortable with striking down the individual mandate. But since the law didn’t include a “severability clause,” that may be difficult to do.

Also, in the second part of today’s arguments, members of the Supreme Court will hear arguments from 26 states on how Medicaid expansion, which was part of ObamaCare, puts an undo burden on them.

While yesterday was the “main event” of the week, today could prove to be just as entertaining.