Day 2 Recap, Part I: Government Crash
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Day two is over, but you can still smell the smoke from all the fireworks that exploded inside the Supreme Court today. And, thankfully, it looks like trouble for the individual mandate in the Patient Protection and Affordable Care Act.
To expedite the availability of these summaries, we will analyze each side individually. First, the Government.
U.S. Solicitor General (SG) Donald Verrilli argued first for the constitutionality of the law and appeared to be rattled from the beginning. Even before the Justices asked any questions, he was stumbling to the point of having to stop to get a drink of water.
Then it got worse. And Justice Anthony Kennedy surprisingly set the tone, "Can you create commerce in order to regulate it?"
Chief Justice John Roberts was equally piercing, "Can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?" SG Verrilli did not really have an answer for these questions. He continued to say it was different and that everybody needs health insurance.
When Justice Samuel Alito inquired about burial insurance, since everybody is going to die also, here was SG Verrilli's answer (if you can call it that):
It's, I think it's completely different. The -- and the reason is that the, the burial example is not -- the difference is here we are regulating the method by which you are paying for something else -- health care -- and the insurance requirement -- I think the key thing here is my friends on the other side acknowledge that it is within the authority of Congress under Article I under the commerce power to impose guaranteed-issue and community rating forms, to end -- to impose a minimum coverage provision. Their argument is just that it has to occur at the point of sale…
Justice Kennedy focused on what he called the "affirmative duty to act to go into commerce" and how unprecedented it was, and he asked if the SG could not see that. "When you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?"
Justice Ruth Bader Ginsburg and the other liberal justices tried to help Mr. Verilli as much as they could, but it didn't help much. When they forced him to answer that the government can indeed force you to buy burial services and the like, Justice Kennedy asked the question that still echoes throughout that chamber, "Well, then your question is whether or not there are any limits on the Commerce Clause."
Justice Scalia summarized the problem well, "The Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not."
And again, Justice Kennedy, "Here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way."
It was evident from today's arguments that the Government faces a very tough burden, and even the liberal Justices will have to work hard to justify the government's position.
Even liberal CNN commentator Jeffrey Toobin called it 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,"
Still, we must remember that it is usually a mistake to completely trust the indications at oral arguments when looking at Supreme Court cases. There is no question that our prayers for the Justices' wisdom are still very much needed as they take time to deliberate on the matter and also as they take time to write their opinion. Whatever the final assessment is, the language used to develop the arguments for or against it will be just as important as the ultimate outcome.
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