Day 2 of oral argument on ObamaCare. Go here to read the transcript. Go here to listen to an audio recording of the oral argument. Today’s argument focused on the constitutionality of the individual mandate and the argument did not seem to observers to go well for the Obama administration. Jeffery Tobin, CNN’s legal analyst, put it succinctly:
“This was a train wreck for the Obama administration,” he said. “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… if I had to bet today I would bet that this court is going to strike down the individual mandate.”
“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”
I will post my own observations of the oral argument this evening.
1. General Chaos- By all accounts Solicitor General Donald B. Verrilli, Jr. is a fine attorney. There was little evidence of that today however. His 65 minute presentation to the Court in defense of the individual mandate of ObamaCare was peppered with questions by three of the four conservative jurists, Roberts, Alito and Scalia (Justice Thomas traditionally has shown little interest in asking questions in oral argument) that General Verrilli was ill-prepared to answer. I found this surprising as I thought the questions were by and large fairly obvious, and any attorney appearing before the Supreme Court, or any appellate court, knows that he will spend most of his time dealing with questions from the court. Here is a painful sample:
Over the course of the health care debate Obama had claimed that the individual mandate was not a tax and thus did not violate his pledge not to raise taxes on those earning under $250,000. Today, as U.S. Solicitor General Donald Verrilli argued the contradictory position — that it was a tax and thus justified under Congress’s taxing power — Scalia reminded him.
Verrilli argued, “The President said it wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance. I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.”
It didn’t help that the attorneys opposing the mandate gave solid performances. In a case of this magnitude the bad presentation of an attorney will likely not sway any justices, but the General clearly did not help the case for ObamaCare.
2. Questioning Anthony Kennedy-The most dispiriting feature of the oral argument today for advocates of ObamaCare were the numerous questions asked by swing vote Kennedy which indicated a deep scepticism whether the federal government, a limited government by the terms of the Constitution, has the constitutional authority to compel citizens to purchase health insurance. He echoed a theme raised by the conservative jurists: if Congress can do this under the Commerce Clause, what can’t Congress do under the Commerce Clause. Is there any limit to what Congress can constitutionally legislate on if the mandate is upheld? Kennedy left a sliver of hope open for advocates of ObamaCare by expressing some sympathy near the end of today’s oral argument for the proposition that the health care market is different and that people without insurance raise costs for everyone since all must pay for their care if the uninsured do not. So once again a major issue in our society will probably be determined what one man, Anthony Kennedy, thinks. If you find that fact disturbing I, and I believe the Founding Fathers, agree with you.
Tomorrow the issue of severability will be argued. If one aspect of ObamaCare is deemed unconstitutional, can the rest survive, or must it all be overturned? This is an issue because no severability clause, which would allow the law to stand if one portion was deemed unconstitutional, was included in the vast corpus of the ObamaCare legislation. A good analysis of this issue is here.