Day 2 of Oral Argument on ObamaCare: Train Wreck For the Administration


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.”

Toobin added that he felt that U.S. Solicitor General David Verrilli simply wasn’t prepared for the conservative justices.

“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.”

Toobin also said he thought Justice Kennedy, the perennial swing vote, was a “lost cause” for supporters of the health care reform law.

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.

“The president said it wasn’t a tax, didn’t he?” Scalia asked.

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.”

But later in this strain of arguments, Chief Justice John Roberts asked, “You’re telling me (Congress) thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?”

Verrilli responded, “They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective.”

Roberts evidently stunned by the weakness of the argument, shot back “Well, that’s the reason? They thought it might be more effective if they called it a penalty?”

A stumbling Verrilli started out, “Well, I — you know, I don’t — there is nothing that I know of that — that illuminates that, but certainly -­”

At that point Obama appointee Sonia Sotomayor navigated to another line of questioning.

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.

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Donald R. McClarey

Cradle Catholic. Active in the pro-life movement since 1973. Father of three and happily married for 35 years. Small town lawyer and amateur historian. Former president of the board of directors of the local crisis pregnancy center for a decade.


  1. I’m stretching back to law school days so I may not have it right but I recall that Scalia wasn’t all that fond of striking down sections of a bill, that he favored an all-or-nothing approach. If this is right, how does it affect your read?

  2. It sounds hopeful, if CNN’s words are true. I value Donald’s analysis much more than CNN’s. I value and appreciate the analysis because I don’t have the legal mind to interpret or the time to quickly read the entire transcript. So in advance, thank you!

  3. Justice Kennedy left a ‘tell’ when he commented, as opposed to questioned, how the mandate fundamentally changed the relationship between the individual and government. Pray, pray, and pray some more!! Our Lady of Victory…….

  4. I have read some of the transcript…. questions.

    1. What is Justice Sotomayor doing in this case? She should have recused herself.

    2. And what is with her using Occupy speak? “Only 1% of the people can afford to self-insure.” Why not just say a minority can self-insure. Don’t need the whole 99% vs. 1% warfare business.

  5. FWIW I have serious reservations about the constitutionality of the mandate, but it has some attractiveness as a policy matter. (Just as not all bad laws are unconstitutional, not all good laws are constitutional.) Since American society has already decided that necessary health care should be available to everyone, including those who are uninsured, and that government will reimburse providers for such care (and good luck reversing that social assumption!) there is a pretty compelling case in favor of a mandate to avoid irresponsible free riders. I would make two observations though. First, I would prefer that the mandate be required by states rather than the feds, for reasons grounded in both constitutional law as well as practical prudence. Second, the mandated insurance should be limited to truly life-threatening or very serious conditions the cost for which would be regarded by most families as catastrophic. The government should not mandate that my neighbor insure my wife’s physical ability to play tennis, let alone require my mother to pay for her neighbor’s birth control.

    Private companies can certainly offer more expensive policies with richer coverage, but only on a voluntary basis.

    In sum, we need to de-couple insurance from employment, eliminate its tax-favored treatment, allow interstate competition, and limit its mandated application to only serious medical matters appropriate for the risk-sharing/shifting nature of insurance. Obama care fails in almost all important respects.

  6. I’ve been trying to drive home that point to my kids, Kyle.

    Giving specific numbers, if you don’t know them to be true, is a lie, and a transparent one at that. Words like most, many , some, etc. are proper descripters and an argument is all the stronger for not having to eat your words when they are found to be false.

    If my seven year old gets it, why do we adults blunder into that minefield again and again?

  7. Mike, you raise good points. I particularly like the idea of treating insurers like the national companies that they are rather than maintaining the fiction that they are state entities. The present system has all of the negatives and none of the positives of state enforcement.

    Had Congress approached this intelligently, I’ll bet there was a lot of agreement to be had. Congress could have crafted small bills establishing a national insurance board, licensing, and liability through the federal courts. Instead, they wrote an omnibus bill that is likely unconstitutional and, if constitutional, unworkable.

    No time to read it indeed!

  8. Even if Constitutional, how would you enforce the mandate? Presumably, those who cannot afford the coverage, would not be able to afford the fines (or else they would just get the coverage).

  9. Mike Petric “irresponsible free riders”?
    Cmatt: Excellent post. Why is there a penalty inscribed into Obamacare? If one cannot afford to buy an expensive car, must he pay a penalty for not buying the car? Will the government seize your property through a lien after you’ve passed away if you cannot afford to buy the car and must pay a penalty?

  10. Mike Petric: “Second, the mandated insurance should be limited to truly life-threatening or very serious conditions the cost for which would be regarded by most families as catastrophic.” Mike you have just reiterated the abortion mantra. Why should your mother be mandated to pay for your neighbor’s abortion?

  11. Mary,
    People who prefer not to buy health insurance but expect others to pay rare indeed irresponsible free riders.
    I have no idea what to make of your second post. I apologize but simply do not understand you.

  12. As much of an unconstitutional piece of crap this law is and how badly the administration is arguing their case, I don’t count my chickens until they hatch with SCOTUS.

  13. Thank you for the transcripts. 76 pgs. and 111 pgs. plus the word counts/refs.
    It’s interesting and totally refreshing for me, a simple reader, to hear actual objective thought expressed from the Supreme Court Chief Justice and other Justices. The Federal Government branch that is realistic and working.

    The degree to which crippling, partisan politics in the other two branches has risen, (or fallen?), is beyond consideration. The rhetoric is irresponsible and propaganda laden, aimed at stirring elitism and racism or hatefulness in this formerly workable melting pot. These people are ignoring their budgets, the economy of this country, and the unthinkable national debt because they can and they have something or someone to ‘blame’ due to ‘next’ elections. Seems the only thing that matters to the actual president are his campaign funding party events and power broking world travels. Is accountablity so minimal that it’s only found in election results?

    Anyway, thank you. It’s good that the relationship between federal government and citizens is worth considering by this Branch. Healthcare of all things! Why did the proponents decide to be exempt from their healthcare mandate – very phony … ?

  14. I’m with Greg. Too many conservatives read of or saw Toobin’s “train wreck” description and are celebrating prematurely. I was sure Obamacare would not pass until the moment it did, so I’ve learned my lesson. The fat lady hasn’t sung yet – or rather, we don’t know yet what whims and fancies may seize the mind of the most powerful man in the country – maybe one of the most powerful Americans ever. Who knows what side of the bed, left or right, Kennedy will get up on the day the vote takes place? Remembering Kelo, I remain a pessimist.

  15. “Rand Paul filed an amicus brief asking the court to overrule Wickard v. Filburn while they’re at it. I’m not a lawyer, but it sure looked good to me.”

    RL, it WOULD be good for the Court to overrule Wickard v. Filburn. For you non-lawyers, let’s just say that Wickard ranks behind ONLY Roe v. Wade and the Dred Scott case as THE worst Supreme Court decision of all time. And it is easily the worst Supreme Court case regarding economic activity and the regulatory power of the federal government over individual liberty.

    Alas, its continuing validity makes the ObamaCare casee a mor difficult decision for the Court than it otherwise should be. Therefore, it it high time for the Court to once and for all overrule that abomination of an opinion.

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