March 27, 2012

Supreme Court Justices Unconvinced ‘Individual Mandate’ Is Constitutional

It is Day 2 of oral arguments over the Affordable Care Act and its not looking good for team Obama. The conservative wing of the Supreme Court, along with Justice Kennedy appear unconvinced that congress has the power to demand citizens buy health care insurance. Here’s a roundup of today’s headlines:

NPR – Insurance Mandate A Tough Sell To Justices

“The government had a hard time, and if they win, they win narrowly,” NPR’s Nina Totenberg reported from outside the court. “I don’t think you can call this.”

Just take a look at the very start of the brief filed by Paul Clement, the legal wunderkind who is leading the challenge by 26 states to the overhaul law: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.”

After Clement finished his arguments along those lines, SCOTUSblog’s Tom Goldstein left the courtroom to file an update, saying, “The individual mandate is in trouble — significant trouble. It’s too early to tell whether it will be struck down.” Still, it’s clear that the court’s conservative justices are “quite skeptical.” And Goldstein said, “Paul Clement gave the best argument of any kind that I’ve ever heard.”

CNN / Politico – Toobin: Health law ‘looks like it’s going to be struck down’

“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down,” Toobin said on CNN. “All of the predictions including mine that the justices would not have a problem with this law were wrong.”

The Hill – GOP leaders not predicting SCOTUS healthcare decision

A parade of senior GOP lawmakers assailed the two-year-old law following a closed-door conference meeting Tuesday, and Speaker John Boehner (R-Ohio) said it had employers “scared to death” to hire more workers. Still, Boehner demurred for a second time in a week when asked what he thought the high court would do with the case. “I’m not going to prejudge what the Supreme Court is going to do,” Boehner told reporters.

Business Insider – People Are Saying That Obama’s Healthcare Law Got Massacred At The Supreme Court Today

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.

According to reports from the courtroom, the four liberal justices seem inclined to uphold the law. But it is still unclear if the Obama administration’s legal team will be able to get a fifth vote.

The New Republic – Day 2 at the Court: Well, that Could Have Gone Better

Samuel Alito and Antonin Scalia, seemed openly hostile to the government’s arguments. The justices don’t always tip their hands and, so, it’s impossible to know what they really are thinking. But they certainly seemed prepared to strike down the individual mandate, on the grounds that it unfairly compels individuals into a form of commerce, buying insurance, they would not do on their own.

I would like to point out a Talking Points Memo article from Monday that might help to tone down today’s narrative that the individual mandate and the Affordable Care Act are doomed.

TPM – John Roberts May Have Tipped His Hand On ‘Obamacare’ Reasoning

In an exchange with a plaintiffs attorney, Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.

“The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,” Roberts said, over strong objections from attorney Gregory Katsas. “It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.”

Chief Justice John Roberts’ remarks relate to the argument I made in ‘The Individual Mandate: Why Precedent Matters‘. I believe the individual mandate is nothing more than a tax. The language of the individual mandate might be unique, but if imposed, it’s collected as part of your income tax filing with the IRS. The challengers to the health care law want to break apart the ‘mandate’ from the ‘penalty/tax’ to argue their case but I think it’s irrelevant. Nobody is forcing anybody to buy insurance, but if you choose not to that means you will pay more tax. It’s as simple as that.

The media speculation will certainly continue, but we will have to wait until June before we know the final ruling.

dks

photo by Tim Sackton

additional reading:
Justices Have Hard Questions on Insurance Requirement

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