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Wednesday, March 28th 2012

The Day The Mandate Died

Yesterday was not a good day for the Obama administration, namely Solicitor General Donald Verrilli, or for the Affordable Care Act. Toobin of CNN gives a great rundown of why it was so bad but here is as the Washington Post described it as well,

The Supreme Court’s conservative justices appeared deeply skeptical Tuesday that a key component of President Obama’s sweeping health-care law is constitutional, endangering the most ambitious domestic program to emerge from Congress in decades. In an intense interrogation of the government’s lawyer, Solicitor General Donald B. Verrilli Jr., the justices posed repeated and largely unanswered questions about the limits of federal power. At the end of two hours, the court seemed split on the same question that has divided political leaders and the country: whether the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty. The answer is likely to come from Justice Anthony M. Kennedy or perhaps Chief Justice John G. Roberts Jr. Both men fully joined in the rough 60 minutes of questioning for Verrilli. But they indicated that the case might be a closer call for them than for their colleagues.

Here is a cut up of Verrilli coughing, stuttering, umming his way through his disjointed defense of the individual mandate,

Plenty of pundits immediately decried the second day of hearings as bad for the proponents of the individual mandate. That interpretation in and of itself has drawn criticism from those who feel Justices Roberts and Kennedy’s votes on the matter may still slide to save the mandate.

Reports of the mandate’s death are greatly exaggerated. The Solicitor General did not frame the issue well, and lost control of the discussion almost immediately. But the plaintiff-respondents had little to offer beyond the assertion that commerce could not be coerced. All in all, the only clearly articulated vote against the law was Justice Scalia’s, though one can assume Justice Thomas will join him. Justices Breyer, Ginsburg, Sotomayor, and Kagan plainly support the mandate. Justices Kennedy and Alito seemed cautious but open-minded. Chief Justice Roberts asked the toughest questions of the government, but appeared to regard the mandate favorably by the end of the session.

I’m sure predicting SCOTUS votes based on oral arguments can be a dicey game but I don’t think there is any exaggeration to the proclamations that the individual mandate is in trouble. The way I heard it and read it, and what should be the most troubling thing for proponents of the law, is that almost every comment Kennedy and Roberts gave which seemingly demonstrates their open-mindedness was prefaced with “The government tells us” or “According to the government.” I cannot, amongst the transcript, find a single unprefaced question to the plantiffs from Roberts that seems to bode well for the Obama administration. And this is the best I can muster for Kennedy,

I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

Certainly Justice Kennedy mustered criticism of the Solicitor General’s position with far more ease than he did with the plantiff’s position,

In case you didn’t hear it, here it is,

It requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And 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.

Does that mean Justice Kennedy, or even the Chief Justice, won’t come up with a limiting principal on their own; one not articulated by the government? Of course not. I just see that scenario as incredibly unlikely. Read the transcript for yourself and see what you think. Personally I don’t think its an exaggeration to claim the individual mandate is as good as dead come June.