SCOTUSblog provides a brief recap:
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., 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.
Earlier in the day, the mandate faced a series of tough questioning from Justice Kennedy:
It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions. Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.
Kennedy tends to be a weathervane, but does also tend to side with individual liberties over government power. This is going to be a close run thing.
Update: CNN legal analyst Jeffrey Toobin attended today’s hearing. He says that based on the questions the justices asked, ObamaCare is likely to be struck down.
“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 said Tuesday on CNN. “I think this law is in grave, grave trouble.”
Toobin’s observation came on the second day of oral arguments at the Supreme Court over the constitutionality of the Affordable Care Act.
Appreciate your commentary. This should be an easy 9-0 against obama care decision because it over reaches the confines of the Constitution which was designed to protect us from all forms of tyranny. That is why no branch has total power in order to buffer against the chipping away and final frontal assault on the Constitution which this is. It is amazing that Justices who take an oath to uphold the Constitution are not in lock step against this.
Truth to be told – I believe that the justices are doing exactly what they need to. Listen to all sides – and do not make a hasty decision without FIRST listening to the arguments.
Doing anything else would – well in short – be very detrimental. While I agree this is an easy decision – not giving the time for a full argument is not acceptable.
We are country of LAWS not of man – let each side argue and show where they think this is lawful and then let it be voted upon by the chief justices of the country.
If the APPA is allowed to stand, it will change the meaning of the Constitution and deny all Americans liberty to make choices for themselves. While the legal arguments on both sides carry merit, in the end I find that the decision made by this court will determine whether individual rights will trump an interpretation of the commerce clause.
The necessary and proper meaning of original intent was to prevent tariffs on good from other states, but let it to Congress to legislate that commerce to protect the sovereign rights of all States. It was not the intention of the founders to restrict or force compliance with legislation, which seems to be the general consensus regarding this health care act.
The sidebar mention that needs to be brought to the front in all this is the fact that the bill creates administrative panels with the power to enact mandates and regulations regarding health care that goes beyond the jurisdiction of administration and into the realm of unchecked legislation. Telling patients what procedures and treatments they are allowed, telling doctors they MUST see certain patients, telling insurance providers they MUST cover birth control and contraception seems to me, an overstepping of what is in the broadest sense “necessary and proper.”
This bill is only necessary to fulfill the dreams of the Late Senator Kennedy, Former First Lady and Secretary of State Hillary Clinton, and of course Barack Obama whose re-election may depend on the decision made my the court.
One would think that the Supremes decision on ObamaCare would be a classic no brainer, even for the liberals on the court. O-Care puts an enormous amount of power in the hands of the Sec. of HHS, and other unelected bureaucrats, to push rules and regulations by executive fiat. What is to prevent a future Republican appointed Sec. of HHS from using that power to do an end run around Roe vs Wade?