The conventional wisdom from “experts’” polling has been that President Obama’s health care reform law is likely to be upheld by the Supreme Court. But after today’s arguments, it sounds like that narrative may have changed. CNN’s senior legal analyst Jeffrey Toobin, who previously predicted that the Obama administration would prevail at the Supreme Court, came out of the hearing today with a very different perspective. Via HotAir:
The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.
Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.
According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”
“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.
The Washington Examiner’s Phil Klein reports the conservative justices seemed highly skeptical of the administration’s arguments during questioning, despite speculation that Chief Justice Roberts might rule in favor of upholding the law. Justice Kennedy, who is most likely to be the deciding vote, also appeared dubious:
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.
Also, one of the key arguments made by challengers in the case, is that earlier rulings of the Commerce Clause don’t apply here because the mandate forces people to enter the stream of commerce. On this point, Kennedy asked Obama’s Solicitor General Donald Verrilli, “Can you create commerce in order to regulate it?”
The argument today centered on whether or not the individual mandate is a tax. The administration maintains it is a tax, which gives Congress the constitutional authority to implement it. By all accounts, the justices didn’t seem to accept that characterization of the mandate today. But of course, this is all speculation based on the questions and tone from the justices – which isn’t always an accurate indicator of where they stand – and there’s still another day of arguments tomorrow.
Do not forget that ruling on the EPA – the couple who wanted to build their house by the lake. n nThe EPA had argued that they had to first violate the EPA decree, be fined some huge amount of money and then — only then — could they go to court and challenge the fines, which would still be accumulating daily. SCOTUS said no, you have the right to appeal before the fine is charged you. n nI think that precedent will apply here — rather than not having insurance, paying the fine and then appealing it, the earlier ruling will defend having to challenge it before you become liable to it. n nThere is another issue here — if this Commerce Clause is upheld, all state power over any aspect of medicine is now gone, everything will be Federal authority. That means no more medical marijuana (nor legalization of it), all federal licensing of medical folk, and Congress will have the ability to regulate abortion. n nThat means that Congress can go at least as far as the most restrictive state law now does — that the leftist (no, they are not "liberal") states could have a conservative congress impose these laws on them, to which they will have no appeal. It was Ronald Reagan who said that the best appeal to an unfair state practice is the state line — which now will be moot. n nIt gets better — Congress has the power to ban smoking. H&HS could simply decree that cigs are contraband and send federal troops out to seize & destroy them — much like was done with alcohol under the Volstead Act, but that took a Constitutional Amendment. n nIt is scary what this could lead to — I pray that this law is ruled unConstitutional….
I want to correct your statement that "The argument today centered on whether or not the individual mandate is a tax." n nThat's untrue. n nThe argument today keyed on whether Congress exceeded its authority under the Commerce Clause in forcing everyone to buy health insurance or pay a penalty. The argument about whether the pemalty is a tax was made but so minimally as to be a virtual afterthought, even though the mandates might be conceivably upheld on that basis.