Third and Final Day of Oral Argument on ObamaCare

Wednesday, March 28, AD 2012



Day 3 of oral argument on ObamaCare.  Go here to read the transcript.  Go here to listen to an audio recording of the oral argument.   Go here for audio highlights of the oral argument.

A very long day in the Supreme Court today with the severability argument this morning, and the expansion of medicaid under ObamaCare in the afternoon.

1.  Severability-The severability issue came down to the question of, assuming that the individual mandate is determined to be unconstitutional, what parts, if any, of the remainder of ObamaCare could survive.  The conservative jurists, plus Kennedy, from their questions seemed to argue that if the mandate is deemed to be unconstitutional, all of ObamaCare must fall.  Justice Scalia raised the practical problem of the Court going through the thousands of pages of the ObamaCare legislation and picking out what portions can remain and what must be done away with if the mandate is unconstitutional.  The liberal jurists argued that if the mandate is unconstitutional, only the parts of ObamaCare directly related to the mandate must be held to be unconstitutional.  Reading judicial tea leaves is difficult, but I think there may well be 5 votes to rule all of ObamaCare unconstitutional, assuming that Justice Thomas, probably a given, votes with the conservative jurists.

2.  Medicaid Expansion-This argument seemed to also go against the government.  The conservative jurists and Kennedy seemed quite concerned about the federal government coercing the states to expand medicaid to cover more individuals.  One of the many problematic features of ObamaCare has been the immense power grab by the Federal government that is at the very heart of ObamaCare, and that clearly troubled four jurists, Scalia, Alito, Roberts and Kennedy.  Once again assuming that Justice Thomas votes to rule all of ObamaCare unconstitutional, almost certainly a safe assumption, the medicaid expansion will go down with the rest of ObamaCare.

The Court is expected to release its decision by the end of June.

3 Responses to Third and Final Day of Oral Argument on ObamaCare

  • Obama’s gonna have a fit if it’s struck down.

    And if it’s upheld, then he will be embolden as never before.

    Either way, his reaction won’t be good for us.

  • Don

    I suppose Justice Thomas is the only one who might take the sensible postion that it is unconstitional becasue it is dependent on WickedWickard, and that was wrongly decided.

    :- )

  • If I had to choose, I would rather him have a fit, one giant hissy fit. 🙂

    I just heard day 2 and 3 and read the transcripts. Judging based on presentation and arguments, I think the petitioners, FL, et. al., have a good case and were well represented by Mr. Paul Clement. He answered directly and confidently.

    Verrilli had a better day 3 than 2, but he still comes off at times as ill prepared and nervous. He has a lot of breaks in speech and is often needing the leftists on the bench to bail him out. (Often is measured as a quantity exceeding the number of times Clement needed an assist.) His arguments on day 2 came out very often as verbal spaghetti.

    The impression is it looks good for the Constitution, but these justices may surprise. It will be an interesting opinion. I hope it goes well and is released on my birthday, which is near the end of June. What a present it would be.