The ObamaCare Arguments – The Second Day
It was a packed house at the Supreme Court today as lawyers Paul Clement and Michael Carvin tried to persuade the justices that the individual mandate — the centerpiece of ObamaCare — is unconstitutional. Outside, the loud protests — from both sides of the question — continued. But inside the court was where you’d find a much higher percentage of political movers and shakers. Among them: Senate Majority Leader Mitch McConnell (R-Ky.), Sen. John Cornyn (R-Texas), U.S. Attorney General Eric Holder, and many of the state attorney generals, such as Ken Cuccinelli of Virginia and Greg Abbott of Texas, who have filed suits challenging the law.
As the arguments got underway, the court’s doctrinaire liberals — Steven Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan — made it very clear that they see no problem in Solicitor General Donald Verrelli’s claim that requiring individuals to buy health insurance is within the Commerce Power of Congress. But while Verrelli seemed to have the four liberal justices on his side, he did not have a good day. Most of the onlookers and court watchers I talked to thought the government came out the loser today.
Verrelli was clearly nervous as he started off his one hour of argument, stumbling repeatedly in his opening statement. His arguments were, at times, confusing and sometimes contradictory, emphasizing the weakness of the government’s position. Every now and then, Ginsburg and Breyer would step in to try to help him when he was having trouble answering difficult questions from Justices Scalia, Alito, Roberts, and Kennedy.
Kennedy challenged Verrelli almost immediately, asking him whether Congress can “create commerce in order to regulate it.” Verrelli’s claim that Congress can regulate because the health care market is unique since everyone will have to participate in it at some point started to fall apart when justices such as Alito began asking him about other markets. For example, Alito pointed out that everyone dies and therefore will participate in the burial expense market. Under the government’s rationale, Congress could compel all Americans to buy burial insurance so that such costs are not passed on to family or the government. Justice Kennedy snidely remarked that the government was saying the insurance market was unique “[a]nd in the next case, it’ll say the next market is unique.”
Justice Kennedy made it clear more than once that the government has a “heavy burden” to show that what it is doing is constitutional since it is compelling people to enter into commerce. Kennedy also stated that the government’s theory would “fundamentally change the relationship between the individual and the state.” This is a key point because in past cases where he has sometimes upset conservatives (such as Lawrence v. Texas, which struck down a state sodomy law), Kennedy has sided with protecting the individual against the power of the state. This case falls squarely into that category.
Justice Scalia voiced his concern that while the government was arguing that its regulation was necessary, it was not addressing the question of whether it was “proper.” The government’s claim violated “an equally evident principle in the Constitution,” Scalia said, “which is that the federal government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers.”
Both before and after the arguments, I had revealing conversations with a liberal professor in the courtroom. He agreed that the government’s chief problem is that it had not provided a limiting factor or boundary line in any of its previous arguments. Thus, if the Supreme Court agrees that Congress has the power to compel the purchase of an insurance policy from a private company, it could compel the purchase of virtually anything considered good or prudent. After the arguments ended, the professor agreed that Verrelli had been unable to come up with a concise and reasonable answer to that question, which was asked of him multiple times by different justices.
Liberal commentators and media analysts have claimed for some time now that this is an easy case for the government and that there was no chance the Court would strike down the individual mandate. After today’s arguments, they must be in shock. The conservative justices were clearly skeptical that the Commerce Clause grants the federal government this authority. Furthermore, Justice Kennedy, who replaced Sandra Day O’Connor as the swing vote on the court, was obviously having trouble with Solicitor General Verrelli’s claims.
Based on the questions posed by the justices today, the possibility that the mandate may be struck down went up sharply.
Tomorrow: final day of arguments. Severability in the morning and the Medicaid expansion of ObamaCare in the afternoon.
“Verrelli’s claim that Congress can regulate because the health care market is unique since everyone will have to participate in it at some point”
Then the GOP should demand the following of EVERY Dem running for Congress:
“Pledge that you will NEVER invoke the Commerce Clause to compel contractual arrangements in any other markets.”
Seriously? You think pledges have any meaning at all, especially to Democrats?
It’s still worth getting them on the record.
YouTube can be a very valuable tool in political campaigns.
No, it wouldn’t matter to them or to the voters that buy into big government.
I wish someone would mention Americans abroad in relation to this lame “everyone will participate” argument. Americans abroad by definition do not use the so-called “healthcare market” which is located within U.S. boundaries.
Tyranny by the majority is supposed to be countered by the Constitution. This law is so coercive and intrusive an action by the federal government, it should be struck on those grounds alone.
“Then the GOP should demand the following of EVERY Dem running for Congress:
“Pledge that you will NEVER invoke the Commerce Clause to compel contractual arrangements in any other markets.””
As others have said, any pledge like that from dems would be worthless anyway. I found it telling that the gov lawyer, while saying health care was a unique exception, did not propose ANY limiting principle on what could be compelled under the commerce clause if this law is upheld, so obviously health care is NOT unique, it is just unique while they are trying to win this decision.
Actually Obama himself pledged, in 2008, that he opposed the individual mandate, and opposed the idea that the gov should force anybody to buy anything. Its on tape, in a debate Obama had with Hillary, where he criticised Hillaries plan for an individual mandate, and explained why he opposed it, and said it was an unwarranted extension of fed power that he would oppose. The way Obama has constantly and publically lied, it is as if he does not think there is such a thing as video recording.
Oral promises from Dems are not worth the paper they are written upon.
.
Heck, I don’t even trust GOP politicians on a pledge – read my lips.
Thank you fo rthe Review – Mr. Spakovsky – I have read several reviews of the court action today. You place a perspective on the actions not found in the other write ups.
I always keep in mind that Liberal Justices (Gisnburg and Breyer) have no problem taking money, or homes away from citizens to expand Government Control.
I for one will never forget Kelo V New London
A little update for you on Kelo. The whole land area in question is now abandoned. It is prime, elevated riverfront property & there is no plan in the immediate future to build on it. ——The result of stupid politicians in New London & CT.
Justice Alito: Couldn’t the government mandate your burial services?
http://www.youtube.com/watch?v=Fid9oqjAvkc&feature=player_embedded
Along the lines of “will have to participate in it at some point.”
Taxes – mandate to make everyone use a Tax Consultant recommended by IRS
Food (eating) – mandate everyone must buy certain government approved foods, after all we all must eat, and eating even affects our health which ties into healthcare!
Sleep – mandate that everyone must buy a certain government approved bed, even mandate how long you must spend on it per day.
We can have a lot of fun coming up with stupid mandates that government cronies would love to force people to buy.
They already regulate our toilets.
And indeed, some of those very arguments came up today. I think it was Scalia who noted that the government’s rationale could also compel us to buy broccoli (food being a market we all participate in at some point) and to engage in mandatory exercise programs to achieve the goals of Obamacare.
I thought basically the same thing as this author when I read the transcript. Excellent questioning by the conservative judges and Kennedy.
Verrelli didn’t seem like he was well prepared – most of the questions asked by justices should have been easily anticipated, and he was fumbling badly from the beginning.
It was interesting for me to see the liberal judges defending the constitutionality of Social Security even though they admitted that most people would have been better off with their own savings plan. To me, we should confront the advisability of a new health care entitlement through the lens of how unaffordable our other entitlements are.
D
Not well prepared, or perhaps weak arguments is all they have. Normally that’s enough when trying to convince their mates in the media.
It’s hard to argue a case with little or no merit. The law’s advocates’ incessant talk about how clear the questions are in this matter or the lack of merit of the opposition arguments is just posturing and political parlor tricks. Ms. Pelosi’s early “are you serious?” response to questions of constitutionality was the opening salvo of dismissive rhetoric. Sometimes effective, but empty. The other theater of attack by advocates is the undermining of the credibility of any ruling which strikes down the law and thus the credibility of the institution of the Court. Shameful and dangerous methinks and just rank intimidation. It undermines the society.
As noted elsewhere here, some of the justices have little hesitation to support increasing government’s coercive power over individuals. May they not prevail.
Well said. The lack of a limiting issue is critical – the government can do anything it wants without it. Liberals simply don’t get it. And when they do understand it, they dismiss it as wrongheaded.
Verrelli’s claim that Congress can regulate because the health care market is unique since everyone will have to participate in it at some point
That’s obviously false. A lot pf people will die suddenly while young and not ever “participate” in the health-care market. The majority of people will, but not everyone.
And there are a lot of markets which the majority of people are or will be involved in at some point. Most people use or will some day use a phone. Does that mean that the federal government is constitutionally justified in taking over the phone industry, or in mandating that everybody must buy a $50/month phone plan?
Scalia did, in fact, ask about mandatory cell phone purchases.
In fact, I can even visualize a big-government Republican like McCain co-sponsoring “bipartisan” legislation with Dems, mandating that we must all buy smartphones in order to be able to communicate during a national emergency. (That’s how a lot of folks communicated during the 9-11 terrorist attack.)
There were a lot of similar things during the early Cold War. Schools and other major buildings were required to have survival kits containing food rations, Geiger counters, etc.–all purchased from private vendors.
I think it was actually Roberts who did the cell phone line of questioning. And the parallels with health care were strong. Yet the position taken by the lawyer was the government can dictate healthcare but not cell phone use. Without a limiting principle, Obamacare is the first step on a slippery slope.
Souter really laid it on the line.
He implied that since most of us come into this world in hospital delivery rooms, delivered by obstetricians, that we’re all consumers of health care from the moment we’re born. And hence the Commerce Clause can mandate compelled behavior from our families.
That argument was so extreme that even Kagan and Ginsberg didn’t want to be associated with it. (The infant isn’t the consumer, her mother is.)
Save America, flush HealthCare Reform!
I never have been and never will be in the market for a non-emergency elective abortion, so based on the arguements put forth, I could not be forced to buy insurance from a pool that includes elective abortions. If the mandate is upheld based on these arguments, I don’t see how it could apply to anything more than catastrophic coverage rather than forcing everyone to buy everything under the sun with no copays and astronomical premiums insurance. Where would it end? Why not force everyone to pay $100,000/yr premiums and include 3 healthy meals per day and snacks, gym membership, an indoor lap pool in every house, a yearly stress relieving tropical getaway, aromatherapy on a tropical beach once per month, and a lifetime supply of condoms? Why not? Just raise the premiums no big deal. Free rainbows and unicorns for everyone… well forget about the premiums…. shhhhhh don’t tell Obama’s base that nothing is really FREE…. oh right just go pick the free stuff off of the giving tree in the back yard…. yayyyyyyyyyyyy! “Free” EVERYTHING for EVERYONE!!!!!!!!
Justice Scalia is wrong, Obamacare is NOT necessary and can never therefore be proper.
ALL of the Constitution’s clauses must be read, as Madison stated, in the context of the enumerated powers. The Necessary and Proper clause means that the federal government can carry out those cations that are necessary and proper to carry out the enumerated powers. Enacting PPACA was not within the enumerated powers so cannot be justified by any clause.
I saw on Drudge that even the “wise Latina” went after Verelli. Doesn’t necessarily mean all that much, but if she is, as conventional wisdom dictates, in the bag as a vote to uphold, then it stands to reason that she would have kept her mouth shut. Even Breyer and Bader-Ginsburg were trying to help the hapless Verelli by putting words in his mouth.
STRIKE – THIS – DOWN!
Since she shouldn’t even be there, I guess she has to pretend not to be a supporter of the bill she actively supported before rising to the SCOTUS. Did she super-glue herself to the chair, or what?
Are you confusing Sotomayor with Kagan? Kagan was the administration’s solicitor general when Obamacareless was passed.
I stand corrected.
AMATEUR HOUR FOR ADMINISTRATION AT COURT
It was amateur hour for the Obama Administration at court today. The Solicitor General was poorly prepared to argue for the mandate. A reflection of the man on top who was poorly prepared to be President.
Click my name for more on this subject.
Well, since the four liberal judges were seemingly on the government’s side for the Blue Cross insurance congressional mandate, I suppose those judges would be equally on board for the Smith and Wesson mandate to purchase a handgun for those precious moments in the market place of life when 911 just isn’t available? Yes? After all, there is a second amendment, there’s is an interstate market for guns, and possessing a gun is now a defined individual right regardless of most preexisting conditions. Surely a Smith and Wesson is better than the typical Saturday night special, or no gun at all? Surely the government is obligated to ensure the right to a gun for people at the poverty level regardless of one’s pacifistic objections? Just because you would have to buy a gun as a pacifist you still don’t have to use it and violate your conscience. People who buy medical insurance don’t have to use it and can refuse treatments at anytime.
I think I’ll go out and buy one now (a S&W) so I dont get stuck with a $6000 “penalty” later
When Granny and Grampy come home in a plastic bag, Hurrah! Hurrah!
Obama will give them a hearty high five then, Hurrah! Hurrah!
The Doctor of Life and Death degree is ready now
To place upon His Godly brow
The Emanuels will cheer, the Kevorkians will shout
The eugenicists they will all turn out
And the old folks will all be dead by Christmas time next year!
Get ready for the Ezekiel Emanuel Jubilee
Hurrah! Hurrah!
He’ll give Herr Obama three times three
Hurrah! Hurrah!
And he will feel so happy and gay
When Granny and Grammpy are placed at the funeral home on display
small nit to pick – Sen McConnell R-Ky is not the Senate Majority Leader right now.
I hate the conflation of “health care” with “health care insurance”. I have purchased health care from an UrgentCare clinic. I have friends in a small business who have done so.
The argument that “everyone inevitably consumes health care” sounds good but is false, BUT more importantly, the implied argument that “you pay through a policy or you’re not paying, you freeloader”, is false and despicable.
In the last few years, “UrgentCare” clinics, and other “fee for service” medicine have dried up. I don’t know why. I believe the health care industry doesn’t want it to exist or be considered. They are contrary to the goal of enslaving the citizenry to their industry.
I, and others I know without policies, have received health care. But we definitely have paid (paid through the nose) for what service we’ve received.
I find the Social Security argument very interesting. It’s my understanding that when the court decided that Social Security was constitutional, they did it using the logic that it is NOT insurance. It is a system where working people are taxed to pay benefits to retired people. If Congress wanted to tax healthy people and use the money to provide health services to sick people, that would probably be constitutional as well. They chose not to do it that way because it would be ridiculously expensive and create a two-tier system which would not have a strong constituency for expansion.
I think the court is going to do everyone a favor and kill this mess. That will send us back to square one on health care. Obama will be able to use healthcare as an issue in the fall election (Romney won’t give you as much free stuff as I will). Romney had better be thinking about what HIS health care plan will look like (Hint: It better look different than what he did in Massachusetts).
Has the Supreme Court ever ruled on Social Security? I understand that its proponents in the FDR administration have said they were relieved that it had not been challenged because they feared it would be struck down.
Who stole the two Ms? When did “commerce” become “coerce”?
Just asking.
The one word not coming up alot in interstate commerce is “inerstate.” I have heard a million times that each state has a separate menu of underwriters, unique to that state. Health care is usually and mostly sought locally, as local as the neighborhood. There are exceptions if you want the best in the country and seek out Mayo or Johns Hopkins. But mostly medical care now as it was in 1789 is a local concern. Insuring it with the state autorized insurers, regulated by the State Insurance Department, does not change the local nature of medical care. I always questioned the right of the Feds to get mixed up in education for the same reason, that we don’t send our children across state lines for grade school education. So can the Feds get around this by saying we need an interstate insurance “exchanges”, whatever they are, where all insurance plans, which offer everything the liberals want, for free, can be compared and purchased, in order to “create” the interstate aspect for health care? Hence the question by Kennedy I believe it was, whether the Feds can create the commerce to regulate, is a great one. That word, “interstate” may turn out to be important.
From a free-market perspective, I detected two more encouraging things in yesterday’s arguments. One came from Scalia and one from Clement. I describe them here:
http://ohpcenter.org/editorials.php?nav=20120328a