Breaking: "The Mandate is in Trouble"
That was the early assessment of SCOTUSblog's Tom Goldstein, during a break in today's Obamacare oral argument. For one thing, Justice Kennedy -- the presumptive swing vote -- seemed genuinely concerned about the mandate's impact on individual liberty. On top of that, says Goldstein, Paul Clement -- the lead attorney for the challengers -- gave a "superb" presentation. I would add that Goldstein speaks as a friend of Obamacare -- literally. He wrote one of the amicus briefs supporting the mandate.
The argument is now finished, and the early buzz is that Obama has locked up (as expected) the votes of the four liberal justices, but it is not clear whether they can get a fifth vote. Kennedy may yet support the mandate; it's conceivable that Alito might as well. But, if they don't, Obama might come to regret scolding the Supreme Court on national TV for a decision (Citizens United) written by Kennedy with Alito concurring.
I'll post more once I've read the transcript.
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Jun '10
Re: Breaking: "The Mandate is in Trouble"
Israel Pickholtz
etoiledunord:
They can make you buy health insurance, but they can't make you buy burial insurance. They're both costs guaranteed to arrive someday. What's the difference? I don't know how they'd differentiate the government's ability to force one, and not the other.
Health care is not guaranteed to arrive. People do get hit by trains, blown up, shot on the head etc.
I didn't think of that. I guess if you're in Israel, that might be more in the front of your mind than if you're in suburban Minneapolis.
Nov '10
Re: Breaking: "The Mandate is in Trouble"
What is really depressing is the fact that this is hinging on one guy. Here's my question for you smart guys: do you have to be a chief justice to know the mandate is unconstitutional? Clearly you have to be a justice to actually rule the mandate unconstitutional. But do you have to be one to know its unconstitutional? Is it really that hard to figure out?
Feb '12
Re: Breaking: "The Mandate is in Trouble"
Can someone please explain how it seems a foregone conclusion in the reasoning for Obamacare that whenever medical care is received, it has to be paid for by insurance? Isn't it reasonable that someone without insurance could pay for medical care out of pocket? I realize that a catastrophic disease or accident could result in enormous expenses, but the remedy for that is a major medical policy, not Obamacare. When a person has a $1000 car repair, he figures out how to pay for it; why can't the same thing be expected for the $1000 medical bill?
Mar '11
Re: Breaking: "The Mandate is in Trouble"
It is always difficult to read the tea leaves when it comes to SCOTUS. What is crystal clear today, however, is that it is a disgrace that Justice Kagan is hearing this case. I am very disappointed at how little attention the issue of her recusal (or the lack thereof in this case) has received, even in the conservative media.
Re: Breaking: "The Mandate is in Trouble"
I just read through the transcript of today's proceedings, albeit quickly. From what I could tell, only the respondents arguing against the individual mandate mentioned Madison, Hamilton, or any of the Framers, or put the argument into some sort of founding context. As for the person arguing the government's case, there was no such reference. That's pretty telling, from my perspective at least. Did anyone else see this or am I missing something?
Re: Breaking: "The Mandate is in Trouble"
That's big problem with the government's position: the feds argue that ObamaCare is a regulation of the means by which people finance health care. It says that insurance is the "customary" method for paying for health care in the US. But the law does not require that one use insurance to pay for health care; rather, it simply requires that you obtain insurance. Once you have insurance you'll be "incentivized" to use it. But then, what if you want to use a specialist who doesn't accept your insurance?
Re: Breaking: "The Mandate is in Trouble"
Basically correct. Solicitor General Verrilli invoked the framers in his rebuttal at the very end, but he had to in order to respond to Paul Clement. Left to their own arguments, the administration would not have mentioned original meaning at all. For them, constitutional law begins circa 1937.
Jun '10
Re: Breaking: "The Mandate is in Trouble"
Mendel
If there is anything I have taken away from the Law Talk podcasts, it is the degree to which the justices base their decisions on political/emotional factors. Downright depressing if you ask me. · 3 hours ago
Why should this surprise anyone?
Every President takes a solemn oath to uphold and defend the Constitution. Are we astonished, then, that Obama signed the unconstitutional mandate into law, or that his HHS issued a mandate that clearly violates the 1st Amendment?
Of course not. We know Obama has a very different view of the Constitution than we do. We are saddened, perhaps, but not surprised.
But we also know Obama appointed Justices Sotomayor and Kagan, and it's reasonable to presume they share his views. Justices are shaped by their worldview, just as Presidents and Congressmen are. Sure, they have law degrees, but then Obama taught Constitutional law.
Jun '10
Re: Breaking: "The Mandate is in Trouble"
Haven't you heard? The "living Constitution" changes meaning with each generation as society evolves and progresses. Citing Madison or Hamilton on contemporary Constitutional issues would be as obsolete as your doctor pulling out Galen or Hippocrates to diagnose your health problem. Get with the times, man, get with the times!
Mar '11
Re: Breaking: "The Mandate is in Trouble"
Joseph Stanko
Mendel
If there is anything I have taken away from the Law Talk podcasts, it is the degree to which the justices base their decisions on political/emotional factors. Downright depressing if you ask me. · 3 hours ago
Why should this surprise anyone?
Every President takes a solemn oath to uphold and defend the Constitution. Are we astonished, then, that Obama signed the unconstitutional mandate into law, or that his HHS issued a mandate that clearly violates the 1st Amendment?
The Constitution was written to provide several degrees of separation between Supreme Court justices and politics: they are appointed, not elected, and serve life terms. Theoretically, they should have less incentive to betray the Constitution than the President.
But of course you are right Joseph: the justices are still human. Hoping they could isolate themselves from politics is as naive as thinking that a car dealer really is cutting into his profits just to give you a good deal. But sometimes hope dies last.
Jun '10
Re: Breaking: "The Mandate is in Trouble"
Mendel
But of course you are right Joseph: the justices are still human. Hoping they could isolate themselves from politics is as naive as thinking that a car dealer really is cutting into his profits just to give you a good deal. But sometimes hope dies last. · 1 minute ago
I don't mean to be a complete cynic, I just think we've allowed the Supreme Court to accrue a dangerous amount of power and deference on this ludicrous theory that they are somehow "above politics."
I'm with Newt on this one, I think it's high time we had a President (and a Congress) willing to take the Court down a peg or two and restore proper balance between the 3 branches.