A bad day for Obama at the Supreme Court

On the second day of oral arguments on Obamacare at the Supreme Court, the majority of the justices were  shooting holes in the administration’s arguments.  Justice Kennedy, usually a key swing voter, expressed skepticism that the government has the constitutional power to force citizens to buy something.  So, surprisingly, did Obama appointee Justice Sotomayor, at least at one point, though at other times she seemed to be in sync with the other three liberals in throwing softball questions.  Not that you can reliably tell the final outcome from judges’ interrogations, but supporters of the law are not feeling good about the day.

There will be one more day of arguments.  The ruling isn’t expected until June.

 

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • http://enterthevein.wordpress.com J. Dean

    I predict that Obamacare will be upheld but crippled when all is said and done.

  • http://enterthevein.wordpress.com J. Dean

    I predict that Obamacare will be upheld but crippled when all is said and done.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    Does Obama ever have a good day at the Supreme Court? You would think a professor of Law would have a better grasp of what will and will not be upheld by the Supreme Court.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    Does Obama ever have a good day at the Supreme Court? You would think a professor of Law would have a better grasp of what will and will not be upheld by the Supreme Court.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    I certainly don’t think it helps one with that branch to ridicule them during state of the union addresses.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    I certainly don’t think it helps one with that branch to ridicule them during state of the union addresses.

  • DonS

    I think it’s a close call. Oral arguments are often misleading, because justices are often harder on the attorneys for the party they are leaning toward, for the purpose of resolving any remaining doubts they may have. Certainly, however, Kennedy’s questions indicate that he may not have made up his mind yet.

    My best guess is that the individual mandate, as it is currently constituted, will be invalidated. The Court is clearly uncomfortable with this perhaps unlimitable expansion on federal commerce clause power, and some questions indicate that justices are bothered by the extent of the mandates on coverage. If the government was truly just interested in ensuring that people were insured against their eventual inevitable participation in the health care market, it would have mandated inexpensive high deductible catastrophic coverage. Instead, it is mandating very expensive comprehensive coverage, with a lot of specifically mandated, fully covered benefits, that result in forcing young people to transfer large subsidies to older people. That is certainly not the least restrictive means for handling the problem the government is complaining about, and it gives the Court an easy opinion to write, with the door open to a modified, very limited mandate.

    The real question, of course, is what happens to the rest of the law if the mandate is tossed out. The arguments on severability today are very interesting for that reason.

  • DonS

    I think it’s a close call. Oral arguments are often misleading, because justices are often harder on the attorneys for the party they are leaning toward, for the purpose of resolving any remaining doubts they may have. Certainly, however, Kennedy’s questions indicate that he may not have made up his mind yet.

    My best guess is that the individual mandate, as it is currently constituted, will be invalidated. The Court is clearly uncomfortable with this perhaps unlimitable expansion on federal commerce clause power, and some questions indicate that justices are bothered by the extent of the mandates on coverage. If the government was truly just interested in ensuring that people were insured against their eventual inevitable participation in the health care market, it would have mandated inexpensive high deductible catastrophic coverage. Instead, it is mandating very expensive comprehensive coverage, with a lot of specifically mandated, fully covered benefits, that result in forcing young people to transfer large subsidies to older people. That is certainly not the least restrictive means for handling the problem the government is complaining about, and it gives the Court an easy opinion to write, with the door open to a modified, very limited mandate.

    The real question, of course, is what happens to the rest of the law if the mandate is tossed out. The arguments on severability today are very interesting for that reason.

  • DonS

    http://www.latimes.com/news/politics/la-pn-justices-poised-to-strike-down-entire-healthcare-law-20120328,0,2058481.story

    This LA Times reporter’s impression, based on the oral arguments today, was that there are five justices ready to strike down the entire law and force Congress to re-visit the whole thing if the mandate is unconstitutional.

    That is the right determination, as the law is unsustainable in its present form without the individual mandate, but I still find it hard to believe the Court, given its pathetic history in this area, will be that decisive and supportive of Constitutional limits on government.

    We shall see.

  • DonS

    http://www.latimes.com/news/politics/la-pn-justices-poised-to-strike-down-entire-healthcare-law-20120328,0,2058481.story

    This LA Times reporter’s impression, based on the oral arguments today, was that there are five justices ready to strike down the entire law and force Congress to re-visit the whole thing if the mandate is unconstitutional.

    That is the right determination, as the law is unsustainable in its present form without the individual mandate, but I still find it hard to believe the Court, given its pathetic history in this area, will be that decisive and supportive of Constitutional limits on government.

    We shall see.

  • Grace

    DonS

    I had just read the article you posted, in the L.A. Times this morning before reading this blog. I believe they will strike down President Obama’s healthcare law entirely.

  • Grace

    DonS

    I had just read the article you posted, in the L.A. Times this morning before reading this blog. I believe they will strike down President Obama’s healthcare law entirely.

  • Grace

    Just in from CNN Breaking NEWS:

    “The Supreme Court today concluded a marathon debate on health care with justices signaling an ideological divide that could topple some or all of the sweeping reform law signed by President Barack Obama.

    CNN senior legal analyst Jeffrey Toobin said he found the questioning by justices signaled they are ready to invalidate the individual mandate, a step he said could put the entire law in jeopardy.

    At issue on the third day of debate was whether all the law’s 450 or so provisions would have to be scrapped if the individual mandate were found unconstitutional. The mandate is the key funding mechanism of the law.”

  • Grace

    Just in from CNN Breaking NEWS:

    “The Supreme Court today concluded a marathon debate on health care with justices signaling an ideological divide that could topple some or all of the sweeping reform law signed by President Barack Obama.

    CNN senior legal analyst Jeffrey Toobin said he found the questioning by justices signaled they are ready to invalidate the individual mandate, a step he said could put the entire law in jeopardy.

    At issue on the third day of debate was whether all the law’s 450 or so provisions would have to be scrapped if the individual mandate were found unconstitutional. The mandate is the key funding mechanism of the law.”


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