Court skeptical of tax argument on mandate?

posted at 12:45 pm on March 26, 2012 by Ed Morrissey

And not just the conservative justices, either — and that spells trouble for Barack Obama and his defense of ObamaCare.  Philip Klein reports from the arguments being made at the Supreme Court today on the health-care reform plan, and the main argument for the constitutionality of its core individual mandate came under attack from the liberal wing of the court:

On the first day of oral arguments in the case challenging President Obama’s national health care law, justices seemed skeptical that the individual mandate should be considered a tax — one of the main consitutional defenses being offered for the law.

To be clear, today’s 90 minutes of oral arguments did not concern the underlying merits of the case, but whether an 1876 law called the Anti-Injunction Act bars the Court from ruling on the suit at this time. Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it, something that would effectively punt the issue until at least 2015. However, there is some overlap between this question and the idea of whether the mandate is a tax, and justices on both sides of the ideological fence expressed skepticism that the mandate should be treated as a tax.

“This cannot be a revenue raising measure, because if it’s successful, there won’t be any revenue raised,” said Justice Ruth Bader Ginsburg of the mandate.

Another liberal on the court, Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”

Why does this matter?  Congress cannot mandate a penalty for failing to engage in commerce — but it does have the power to tax.  Despite Obama’s protestations during the ObamaCare debate that the mandate was not a tax, his team has been forced to argue that it in fact does qualify as a tax, since that’s the only basis on which Congress can impose such a mandate.  Most people believed that the conservative jurists on the court would object to that definition, but this looks as though skepticism on the constitutionality of the mandate goes wider than first thought.  If Ginsburg and Breyer don’t buy the tax argument, the mandate will get overturned — and not by a 5-4 vote.

Alito closed the loop on the question:

Justice Sam Alito asked Verrilli whether he could point to another case in which courts identified something as not a tax for the purposes of the Anti-Injunction Act while still ruling it was a constitutional exercise of taxing power. Verrilli could not name any.

That doesn’t bode well for ObamaCare advocates.  If the mandate gets struck as a constitutional overreach, then regardless of whether the Supreme Court finds severability or not, the entire structure of ObamaCare collapses.  It will hasten momentum for its repeal, and insurers will switch sides to demand its complete rejection.

I’d tell you to watch for more signals, but of course, you can’t.  The Supreme Court rejected requests to televise arguments today, but two polls show that Americans overwhelmingly think that the proceedings should be viewable.  USA Today/Gallup shows that 72% want the arguments televised, including 70%+ among Republicans, Democrats, and independents.  C-SPAN, which would have been the likely broadcaster for such an event, has a poll showing 74% support for televised hearings — and 95% who want the Supreme Court to be more transparent in its proceedings in general.


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Round file it STAT!

Electrongod on March 26, 2012 at 12:47 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

Count me among those who want Pelosi, Reid, and BHO to be more transparent.

But maybe with ACA (Obamacare) they really were?

Difficultas_Est_Imperium on March 26, 2012 at 12:50 PM

OO!

The one thing I do wonder though. Lets for a minute jump ahead here and pretend that the whole bill gets tossed… who here thinks that after your rates for your insurance have sky rocketed ( mine has gone up almost 100% in 2 years ), that they will come back down? Anyone?

watertown on March 26, 2012 at 12:51 PM

Obamacare shouldn’t be the main election issue. It should be jobs, energy, deficit. I sure hope the base isn’t apathetic about those issues. Does it take $20 per gallon gas to get the base fired up? A 50trillion dollar deficit? Unemployment at 20%?

talkingpoints on March 26, 2012 at 12:51 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

Your kidding right?

mechkiller_k on March 26, 2012 at 12:51 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

Nope. We’ve got a president on a hot mic selling out American security to the Russians. That’s the new thing.

rbj on March 26, 2012 at 12:52 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

Yeah, you’re right. pResident O’bama hasn’t been a failure at anything else, has he?

/

Del Dolemonte on March 26, 2012 at 12:52 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

No, I dont think so. There are plenty of other things to go after, and in fact this will still be a issue because you can point to it and say that this is what liberals do when they are left unchecked…

watertown on March 26, 2012 at 12:52 PM

Joke’s on you Ed:

the mandate will be upheld 7-2, only thomas and alito against it. bookmark it.

sesquipedalian on March 26, 2012 at 9:28 AM

Take it from me- this woman knows her stuff!

Chuck Schick on March 26, 2012 at 12:53 PM

Count it!

The Count on March 26, 2012 at 12:53 PM

If 0-Care is overturned but 0bama re-elected, watch for him to expand the Court to 11 justices. Roosevelt tried it, and 0bama is even more arrogant than FDR.

cane_loader on March 26, 2012 at 12:54 PM

Obamacare shouldn’t be the main election issue. It should be jobs, energy, deficit. I sure hope the base isn’t apathetic about those issues. Does it take $20 per gallon gas to get the base fired up? A 50trillion dollar deficit? Unemployment at 20%?

talkingpoints on March 26, 2012 at 12:51 PM

Yes ObamaCare needs to be one of the top issues. Dont you think that ObamaCare does not have a hand in the economy and jobs? If not, your a fool.

watertown on March 26, 2012 at 12:54 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

I’d choose upholding the constitution over winning the next election, personally. Keeping the house and [if possible] winning the senate is tantamount.

I’m nervous about getting my hopes up on this one, Ed. You really think they will strike this down?

Violina23 on March 26, 2012 at 12:54 PM

Well this does seem to be a good sign for us today on bhocare from the SC Justices?
L

letget on March 26, 2012 at 12:55 PM

I think it engergizes the base to finish the job and get rid of the whole lot that brought O-care to the masses. This was suppose to be the crown jewel for these people and it is not even constitutional, good lord. Just think of all the election ad material showing Pelosi and company crowing about what they have accomplished and insisting it is constitutional.

AndrewsDad on March 26, 2012 at 12:56 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

I disagree. There are still plenty of other issues, from the stimulus to the playing footsie with the Russians. Plus, we would see the “signature legislation” rejected by the highest court in the land. That’s blood in the water for the base. We would remember that he rammed something unconstitutional down our throats.

Nick_Angel on March 26, 2012 at 12:56 PM

Obamacare shouldn’t be the main election issue. It should be jobs, energy, deficit. I sure hope the base isn’t apathetic about those issues. Does it take $20 per gallon gas to get the base fired up? A 50trillion dollar deficit? Unemployment at 20%?

talkingpoints on March 26, 2012 at 12:51 PM

Don’t worry, the recent “National Priorities” polling show health care is way down on the list.

The most recent poll, Bloomberg, has health care ranked 4th:

1. Unemployment and Jobs 42%
2. The Federal Deficit 21%
3. Gas Prices 11%
4. Health Care 10%

And the next next recent poll, C-BS/NYT, had these results:

1. Economy and Jobs 51%
2. Budget Deficit 5%
3. Misc. Social Issues 4%
4. Health Care 3%

http://pollingreport.com/prioriti.htm

Del Dolemonte on March 26, 2012 at 12:57 PM

I’m not sure the SCOTUS can be any more transparent. They hear arguments and make inquiries in public and then release the rulings for this way AND that in black & white for everyone to see, when they are done deliberating. Would putting them on the Boob Tube make it MORE transparent ? I don’t think so

birdhurd on March 26, 2012 at 12:57 PM

I think they should put it on pay per view.

and I don’t think its failure will be cause for apathy, rather a call to further fight to save this nation. The battle is here and now. Let’s reform the tax code, social security, medicare, and the education system while we are at it.

Let’s Roll!

redmama on March 26, 2012 at 12:58 PM

Ruling against this helps Romney, since he himself has no real argument against RomneyCare, since he was the father of this mandate.
And he won’t have to be held to the “I will repeal this measure” rhetoric, it let’s him off the hook for something he can’t do.

right2bright on March 26, 2012 at 12:58 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.
inthemiddle

There are plenty of reasons folks want Obama out of office that have nothing to do with Obamacare. Besides, it would be Congress, not any possible new President, who would overturn it, so the existence or non-existence of Obamacare is pretty much a moot point for the Presidential election. Sure, the candidates do a lot of talking about it, but it’s already on the books, and if there was a Republican President and a Democratic Congress, Obamacare would stay unrepealed.

I don’t deny there’s not much wind is the GOP’s base’s sails, but there’s a steady “Anybody But Obama” tradewind pushing folks into the voting booth nonetheless.

Zombie on March 26, 2012 at 12:59 PM

talkingpoints on March 26, 2012 at 12:51 PM

I’m probably in the minority with this position, but I don’t think there’s any single issue more important than the striking down of Obamacare. If OC is found unconstitutional and Obama gets reelected (though I’m not sure how strong the correlation between those two events could or would be)then that’s a trade-off I can live with. I certainly have little or no faith in Obamacare being repealed.

exlibris on March 26, 2012 at 12:59 PM

I’m not sure this is a big deal. If the SCOTUS find favor with this argument today, it essentially punts the issue until 2014-2015 when a petitioner would have actually been forced to pay the tax. Given that the court’s makeup may change by then (pending the outcome in November), the libs on the court would never allow that to happen. No, they want to push the decision now, and that means a lot of fireworks today and then Justice Kennedy in the hot seat for the next two days (esp. tomorrow, the individual mandate day)

johnny alpha on March 26, 2012 at 12:59 PM

Obama to DWS: Obamacare = Titanic, start distributing talking points about how to pin this on Bush!

P.S. Also, start whining about how the Dems ONLY went forward with Obamacare because Romney told them it would work!

Meople on March 26, 2012 at 12:59 PM

The conventional wisdom is that the liberal justices will be pro obamacare. I think they would be doing Obama a favor by killing it. Then we never realize just how bad stupid it was and Obama can say “well, i tried” and be held as a liberal hero for trying.

MechanicalBill on March 26, 2012 at 1:01 PM

No, I dont think so. There are plenty of other things to go after, and in fact this will still be a issue because you can point to it and say that this is what liberals do when they are left unchecked…

watertown on March 26, 2012 at 12:52 PM

Actually, you could point to Obamacare and point out that this is how he spent the first two years of his presidency–crafting a law that was unconstitutional while ignoring the economy, jobs, energy, etc.

Striking down Obamacare actually makes good argument against his reelection.

PetecminMd on March 26, 2012 at 1:01 PM

Sounds good, but I’m honestly not very confident it’ll be repealed. I’d bet 6-3 in favor, unfortunately. Guess we’ll see.

changer1701 on March 26, 2012 at 1:01 PM

Question: Are we not already paying for Obamacare?

Isn’t that the reason its implementation was delayed – so that the funds from 10 years would go to pay for 6 years worth of DowngradedCare?

Chip on March 26, 2012 at 1:02 PM

I’m having a hard time believing this is not going to be a giant set up…

Elena Kagan and Sonya Sotomayor are not going to rule against this law. They may be giving indications of impartiality during the process to quell any doubt of judicial activism.

In the end, this will be a sham ruling…

It will take a Presidential hand to do away with this POS law.

katy on March 26, 2012 at 1:03 PM

Think about it – if 0-Care is nixed by the Court, what other accomplishment does Zero have for a 4-year term?

Cash 4 Clunkers?

Think of all the man-hours and $$$ that American businesses have already been forced to spend waste in anticipation of socialized medicine.

The expenditure has already, by extension, been a drag on the economy.

If it’s overturned, and it’s shown that 0bama has led the country on an unconstitutional 4-year cul-de-sac from which we must turn around and trudge back down – having ZERO net progress (and actually, regress) to show for it, think of the incredible waste.

A leader like that…. should resign.

Bottom line – in England, were the Prime Minister to lead the nation in such a folly, he would be “no-confidenced” out of office immediately.

By rights, 0bamacare’s being overturned would demonstrate such a dramatic failure of leadership, that 0bama should be pressured to resign that very afternoon.

cane_loader on March 26, 2012 at 1:03 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

The point of a strategy is to win at some point. This would be such a gigantic win for the country.

2/3 of the country wants ObamaCare and or the mandate struck down according to WaPo/ABC poll last week. This has to be the biggest political misstep of my lifetime.

One way or another ObamaCare will not stand as created.

Chuck Schick on March 26, 2012 at 1:03 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM
that’s the stupidest thing i’ve heard, the right, CAN’T WAIT to get to the ballot box, and ostupid will lose in a landslide barring martial law, or outright vote fraud. those that say enthusiasm is down because repubs can’t decide on a nominee, don’t understand that if the right nominates some pink meat slime, well, meet president meat!!!!!!!!

tm11999 on March 26, 2012 at 1:04 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

No. What happens is that the middle gets even more disgruntled at Obama because he wasted the first two years of his trying to enact an unconstitutional turkey of a law instead of fixing the economy.

john bono on March 26, 2012 at 1:05 PM

I’m probably in the minority with this position, but I don’t think there’s any single issue more important than the striking down of Obamacare. If OC is found unconstitutional and Obama gets reelected (though I’m not sure how strong the correlation between those two events could or would be)then that’s a trade-off I can live with. I certainly have little or no faith in Obamacare being repealed.

exlibris on March 26, 2012 at 12:59 PM

I agree with you. It’s the constitution, stupid….

Violina23 on March 26, 2012 at 1:05 PM

All, quit calling it ObamaCare. It cares for NO one.

Obama and the Congress-critters, plus hundreds of thousands of Obama cronies are exempt from it. If it were so great, they’d be first to sign up. To Hell with ALL of you.

Call it The Affordable Care Act, then mock the affordable/care in it, and destroy it, before it engulfs you.

It is not a tax. Obama said so. It’s on tape.

p.s. the callers on C-Span are most all morons, incl. the ‘independents’ and righties. No wonder the land is where she is.

Schadenfreude on March 26, 2012 at 1:05 PM

The Supreme Court rejected requests to televise arguments today, but two polls show that Americans overwhelmingly think that the proceedings should be viewable.

I do not think SCOTUS proceedings should be televised at any time, nor broadcast via radio live. At first it would be pretty cool, but then it would dumb down to the level of “Survivor: SCOTUS”

BobMbx on March 26, 2012 at 1:05 PM

Don’t try to explain the constitution to the leftie trolls around here. They think it’s a roll of toilet paper.

Schadenfreude on March 26, 2012 at 1:06 PM

I think all of the Justices simply want to get to the meat of the issue. Unfortunately, I don’t think this is an indication that they won’t buy the government’s arguments. They wouldn’t have even addressed the issue if one of the lower circuits had (wrongly) held that the mandate was actually a tax.

JDF123 on March 26, 2012 at 1:07 PM

If they are not considering the mandate a tax that pretty much means Obamacare is doomed. The tax argument was their strongest, however, one SHOULD think that the justices would consider the fact that Obama, Pelosi, Reid, et all, argued when ramming this monstrosity through Congress THAT IT WAS NOT a tax. They shouldn’t be allowed to turn around now and claim that their tax authority grants them the power to enforce the mandate.

Now they have to fall back on arguing that the commerce clause grants the government the authority to FORCE people into commerce that they don’t want.

To which a justice should ask of the Regime, “if the government has this authority what practical limit (if any) is there on government power?”

wildcat72 on March 26, 2012 at 1:07 PM

There is a fundamental reason why the legislation in unconstitutional; it violates the separation or division of power between the States and their federal government.

James Madison explained this principle in Federalist Essay No. 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.”

The limited powers delegated to the federal government, as stated by Madison, are concerned, for the most part, with external or foreign affairs while the numerous and indefinite powers reserved to the several States pertain to the lives, liberties and properties of the people. Based on this division of power health care falls under the powers reserved to the States.

The health care bill, any way you cut it, violates this principle and is fatally defective. No law passed by Congress can change this principle. No delegated power in the Constitution can be invoked to circumvent this principle. This should be focus of the challenge because everything after this is simply a debate over the details of another usurpation of power.

Skylolo on March 26, 2012 at 1:07 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

The economy.
Unemployment rates unacceptably high.
Obama conspiring with Russia over our missle treaties.
Obama’s hatred of Israel.
The mismanagement of the Justice Department.
The deals to campaign bundlers for exemptions to Obamacare.
Sweetheart loans to cronies operating “green” businesses.
The auto bailouts that really were just pushing money to the UAW.

In short, there is a long list of things that you can pick from even if Obamacare is struck down.

Happy Nomad on March 26, 2012 at 1:07 PM

The White House is undoubtedly working hard on who Barry can blame if SCOTUS strikes down the individual mandate.

Because Barry’s “signature issue” will have turned out to be written in crayon.

NoDonkey on March 26, 2012 at 1:07 PM

and the plan needs to eliminate non-essential coverage requirements such as marriage counseling, massages, etc.

blink on March 26, 2012 at 1:02 PM

Hold on…just hold on a minute. You start messing with my coverage, such as the toe-hair waxing which is necessary for my overall health, and there will be hell to pay.

Bishop on March 26, 2012 at 1:08 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

I don’t think so. At the very least, it portrays Obama and his crew as totally incompetent – they can’t even write their major accomplishment to stand up at the supreme court.

It underscores what lengths Obama will go to to sink this country.

stenwin77 on March 26, 2012 at 1:08 PM

Striking down Obamacare actually makes good argument against his reelection.

PetecminMd on March 26, 2012 at 1:01 PM

No kidding. The untenured law school lecturer creates a massive, intrusive, hated, unconstitutional law.

The ads will write themselves. And forget about the right- the left will be demoralized worse.

Chuck Schick on March 26, 2012 at 1:08 PM

If Ginsburg and Breyer don’t buy the tax argument, the mandate will get overturned — and not by a 5-4 vote.

Don’t get too excited. First, Justices often pose questions such as these and appear skeptical, just to see if their own personal justifications can be articulated by counsel. These questions may or MAY NOT indicate actual skepticism.

Second, if Odumbocare IS struck down, I think that such a decision hurts conservatives in the Fall, since it takes away one of our major rallying cries. Odumbo might actually have sought an early decision to allow a “Masada” kind of moment.

guitarman67 on March 26, 2012 at 1:08 PM

Striking down Obamacare actually makes good argument against his reelection.

PetecminMd on March 26, 2012 at 1:01 PM

Oh, but it all depends on the messaging. This is where the GOP candidate, and the ability to force that message through the biased-media, is critical. All it takes is one Sandra Fluke and it’s all about those mean republicans again…

Violina23 on March 26, 2012 at 1:08 PM

I do not think SCOTUS proceedings should be televised at any time, nor broadcast via radio live. At first it would be pretty cool, but then it would dumb down to the level of “Survivor: SCOTUS”

BobMbx on March 26, 2012 at 1:05 PM

It’s OUR government. We should be entitled to see all of it. These justices are also paid SERVANTS of ours. If they don’t like the transparency they can resign.

wildcat72 on March 26, 2012 at 1:09 PM

Another liberal on the court, Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”

They, being idiotic lefties, want the cake and eat it too.

Obama is on video that it is “not a tax”.

The dummies in Congress, yes, you Nancy, left out the severability clause, which means if the mandate fails, all else is dead, dead, dead.

Lefties are illogical, but you knew that.

Schadenfreude on March 26, 2012 at 1:09 PM

But the GOP candidate better have a good health insurance plan ready. The plan needs to open up nationwide coverage instead of forcing it to be state-by-state, and the plan needs to eliminate non-essential coverage requirements such as marriage counseling, massages, etc.

blink on March 26, 2012 at 1:02 PM

The plan should simply say:

“The government will no longer provide funds for healthcare of any sort”

The next day, medical insurance premiums will plummet.

Day 3, “The government will no longer provide funds for education of any sort”

College becomes affordable overnight to those WHO REALLY WANT TO LEARN SOMETHING besides puppetry.

And so on and so forth. Then, rest on the 7th day.

BobMbx on March 26, 2012 at 1:10 PM

I do not think SCOTUS proceedings should be televised at any time, nor broadcast via radio live. At first it would be pretty cool, but then it would dumb down to the level of “Survivor: SCOTUS”

BobMbx on March 26, 2012 at 1:05 PM

The TMZ effect would follow. Pretty soon, you’d have Kim Kardashian and Coco Austin on the Court, with Simon Cowell as Chief Justice.

cane_loader on March 26, 2012 at 1:10 PM

That is a bit stunning that the liberals on the Court are also skeptical of the tax argument. If you cannot convince Ginsburg, might this go down 7-2 with only Kagan and Sotamyor voting to uphold it?

milcus on March 26, 2012 at 1:10 PM

The dummies in Congress, yes, you Nancy, left out the severability clause, which means if the mandate fails, all else is dead, dead, dead.

Lefties are illogical, but you knew that.

Schadenfreude on March 26, 2012 at 1:09 PM

They left it out for the same reason Nazi’s keep detailed records of everything they do. They never consider an end to their agenda.

BobMbx on March 26, 2012 at 1:11 PM

Even if it’s struck down (I think it will be: 6-3), are we to believe the man giving away missile secrets to Russia will tell Kathleeeeeeeen Sebilius to stop implementing it? He’ll do it by fiat.

SouthernGent on March 26, 2012 at 1:11 PM

Don’t worry, the recent “National Priorities” polling show health care is way down on the list.

The most recent poll, Bloomberg, has health care ranked 4th:

1. Unemployment and Jobs 42%
2. The Federal Deficit 21%
3. Gas Prices 11%
4. Health Care 10%

And the next next recent poll, C-BS/NYT, had these results:

1. Economy and Jobs 51%
2. Budget Deficit 5%
3. Misc. Social Issues 4%
4. Health Care 3%

http://pollingreport.com/prioriti.htm

Del Dolemonte on March 26, 2012 at 12:57 PM

Thanks for the information. Here’s hoping they all realize any Republican is better than Obama and turn out in November.

talkingpoints on March 26, 2012 at 1:11 PM

I do not think SCOTUS proceedings should be televised at any time, nor broadcast via radio live. At first it would be pretty cool, but then it would dumb down to the level of “Survivor: SCOTUS”

BobMbx on March 26, 2012 at 1:05 PM

I agree. Remember the OJ Simpson trial? Once they started televising the proceedings the prosecutors, defense, and even Judge ITO started playing to the audience instead of conducting the trial. They started dressing differently and were constantly aware of their audience. The SCOTUS nine are a pompous and vain lot already, I can only imagine what they would be like with viewers.

Happy Nomad on March 26, 2012 at 1:12 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

Um, I think you want that one back. A mulligan as it were. While I can’t stand any of the choices afforded me, you bet your bottom dollar that I will line up early to vote AGAINST the current baffoon in office. I am not voting FOR anyone…it is a vote AGAINST Obama.

search4truth on March 26, 2012 at 1:12 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

Ummm…no.

catmman on March 26, 2012 at 1:13 PM

And so on and so forth. Then, rest on the 7th day.

BobMbx on March 26, 2012 at 1:10 PM

I like your plan! ;)

search4truth on March 26, 2012 at 1:13 PM

I don’t think so. At the very least, it portrays Obama and his crew as totally incompetent – they can’t even write their major accomplishment to stand up at the supreme court.

It underscores what lengths Obama will go to to sink this country.

stenwin77 on March 26, 2012 at 1:08 PM

Yep, plus Obamacare is MASSIVELY unpopular. You can make the argument, “vote for us because we won’t attempt to IMPOSE such crap on you.”

If Obamacare is struck down that leaves Obama with WHAT accomplishment in his one term?

These:

1. Perpetually high unemployment
2. Perpetually anemic economic growth
3. Perpetually high gas prices
4. Gays allowed to be FLAMING about it and serve in the military

That’s about it. It adds up to what SHOULD be a 45+ state landslide defeat. It won’t be, but don’t be surprised if Obama loses EASILY in the election.

wildcat72 on March 26, 2012 at 1:13 PM

By all means, let’s televise SCOTUS hearings so the left can sound-bite the crap out of conservative justices until there’s public outcry for their removal.

/

Lost in Jersey on March 26, 2012 at 1:14 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

This is what I’m expecting:

Headline:

“SCOTUS STRIKES DOWN OBAMACARE AS UNCONSTITUTIONAL”

Response from the Obama/Pelosi/Reid cabal:

“So what”

BobMbx on March 26, 2012 at 1:14 PM

It’s OUR government. We should be entitled to see all of it. These justices are also paid SERVANTS of ours. If they don’t like the transparency they can resign.

wildcat72 on March 26, 2012 at 1:09 PM

It’s a pretty transparent process. Imagine if Congress or the President had to carefully lay out their rationale for every decision they made and subject it to public review instead of cloaking it in political language. Do we really want the Supreme Court to become political theater?

JDF123 on March 26, 2012 at 1:15 PM

Del Dolemonte on March 26, 2012 at 12:57 PM

…Thanks D D …4th is still high for something that has not officially kicked in yet.
JugEars Inc… is a walking, talking cluster fark to have made his health bill not qualify for the top 3!

KOOLAID2 on March 26, 2012 at 1:15 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

Not if Romney is the nominee, this makes the charge/argument that Obamacare is spawn of Romneycare moot.

Dr Evil on March 26, 2012 at 1:16 PM

Audio of arguments is on C-Span 3 now.

novaculus on March 26, 2012 at 1:17 PM

That is a bit stunning that the liberals on the Court are also skeptical of the tax argument. If you cannot convince Ginsburg, might this go down 7-2 with only Kagan and Sotamyor voting to uphold it?

milcus on March 26, 2012 at 1:10 PM

If it happens that it goes down 7-2 with ONLY those two voting for it, they both should be investigated for collusion. I’m sorry, I know they were supposedly confirmed by the Senate, but sitting justices on the US Supreme Court, aren’t they still supposed to be impartial!? That would just stink to high heaven.

Meople on March 26, 2012 at 1:23 PM

Even if it’s struck down (I think it will be: 6-3), are we to believe the man giving away missile secrets to Russia will tell Kathleeeeeeeen Sebilius to stop implementing it? He’ll do it by fiat.

SouthernGent on March 26, 2012 at 1:11 PM

Imagine all the problems a lame duck socialist can create…

Roy Rogers on March 26, 2012 at 1:23 PM

I’m not sure why everyone is so quick to disregard ‘inthemiddle’s points:

What will things look like in the media/blogosphere/etc if Obamacare is struck down? I hear the liberal cries of “Look, Obama was the decent human being who TRIED to give everyone healthcare, but the MEAN REPUBLICANS took it away because all they care about is protecting rich people and fighting wars!”

Doesn’t make it accurate, but I don’t think it’s ridiculous to expect an anti-Republican swing in the media. I don’t trust that there are enough independents who are well-versed enough to resist the emotional sway of “liberals care about health, republicans don’t” and “liberals care about women’s rights, republicans want to take them away” and all sorts of other BS.

I’m very cynical today, folks… :-/

Violina23 on March 26, 2012 at 1:24 PM

It’s a pretty transparent process. Imagine if Congress or the President had to carefully lay out their rationale for every decision they made and subject it to public review instead of cloaking it in political language. Do we really want the Supreme Court to become political theater?

JDF123 on March 26, 2012 at 1:15 PM

The Supreme Court became political the day they started writing law. Roe vs Wade being the most egregious example of it, though there were previous examples (Dred Scott and others).

You have to be intentionally blind or a liar to think that ideological prejudice isn’t what rules on the supreme court.

wildcat72 on March 26, 2012 at 1:24 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

This is what I’m expecting:

Headline:

“SCOTUS STRIKES DOWN OBAMACARE AS UNCONSTITUTIONAL”

Response from the Obama/Pelosi/Reid cabal:

“So what”

BobMbx on March 26, 2012 at 1:14 PM

Yeah, would anyone be surprised at this?

But to the other question – we actually haven’t been talking about Controversial, Unaffordable and Unconstitutional Obamacare that much for the past couple of months.

That is, besides it’s role in the Democrat’s War on liberty – specifically the attacks on religious Liberty.

There have been plenty of things to talk about besides President Downgrade’s signature mis-achievement.

Worry not – our dear liar has been hard at work trying to Downgrade as much as he can before next November, they’ll be plenty to talk about.

Chip on March 26, 2012 at 1:25 PM

That is a bit stunning that the liberals on the Court are also skeptical of the tax argument. If you cannot convince Ginsburg, might this go down 7-2 with only Kagan and Sotamyor voting to uphold it?

milcus on March 26, 2012 at 1:10 PM

If it goes down with only those two upholding it, there should be some kind of investigation for collusion. I’m sorry, but aren’t sitting US Supreme Court justices supposed to be impartial!? If only those two uphold this thing it would stink to high heaven.

Meople on March 26, 2012 at 1:26 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

the only way to guarantee Obamacare going down is court striking it down.

we need both a 60 seat senate and republican president

gerrym51 on March 26, 2012 at 1:27 PM

Sorry for the double post.

Meople on March 26, 2012 at 1:27 PM

If it happens that it goes down 7-2 with ONLY those two voting for it, they both should be investigated for collusion. I’m sorry, I know they were supposedly confirmed by the Senate, but sitting justices on the US Supreme Court, aren’t they still supposed to be impartial!? That would just stink to high heaven.

Meople on March 26, 2012 at 1:23 PM

It seems to me that Justices should be forced to recuse from every case involving the executive branch, until the president that appointed them is out of office. Sure, you’d have a smaller court on some decisions, but there are a ton of cases that don’t involve the executive branch, so I don’t see an undue hardship of the administration of justice.

There is no way that Kagan should be allowed to vote on this, if you look at the big picture. A conflict of interest is a conflict of interest, whether it’s in the corporate, legal or medical field. There is nothing special about being a Justice that exempts one from having a conflict of interest, and being vulnerable to the potential psychological skewing.

If it’s upheld, and Kagan is the vote, we have a serious constitutional crisis on our hands.

cane_loader on March 26, 2012 at 1:29 PM

I’m a pessimist when it comes to depending on SCOTUS to get anything right.

And, I’ve argued plenty of cases to Appellate Courts thinking, based on questions from Judges, that I had won handily and then received the decision and found we’d lost, and vice-versa. I’ve never had the opportunity to argue to the Supreme Court, but I’m guessing its the same – that you can’t really take their questions as being determinative of the outcome.

Monkeytoe on March 26, 2012 at 1:29 PM

If 0-Care is overturned but 0bama re-elected, watch for him to expand the Court to 11 justices. Roosevelt tried it, and 0bama is even more arrogant than FDR.

cane_loader on March 26, 2012 at 12:54 PM

I suspect not. He would need Congress to do that. Even FDR had to submit the Judicial Procedures Reform Bill of 1937 to try to get Congress to increase the Court’s size. I doubt the Republican House would agree to it. I guess he could threaten it though. Perhaps intimidation would work where legal argument didn’t?

Dawnsblood on March 26, 2012 at 1:30 PM

The administration didn’t base their defense on the tax clause. They also argued, separately and distinctly, that the constitutional foundation for the mandate is found in the Commerce Clause and Necessary and Proper Clause. Even if the liberals on the Court agree that the mandate is not a tax, that doesn’t mean the mandate fails as a matter of law.

cjw79 on March 26, 2012 at 1:30 PM

Let’s clear up an apparent misconception. The power to tax would not make the mandate constitutional because the power to tax is a power whose explicit purpose is to raise revenue to fund the federal government’s constitutionally enumerated powers. Period! There is no constitutional basis for Obamacare so the tax argument fails. This is also why Social Security is unconstitutional.

Charlemagne on March 26, 2012 at 1:30 PM

Second, if Odumbocare IS struck down, I think that such a decision hurts conservatives in the Fall, since it takes away one of our major rallying cries. Odumbo might actually have sought an early decision to allow a “Masada” kind of moment.

guitarman67 on March 26, 2012 at 1:08 PM

I don’t that’s true. How can he campaign on something that’s been struck down as unconstitutional? He can try to run against the Supreme Court I guess, and you can bet they will politicize it, but it’ll hardly hurt conservatives if the mandate is deemed a bridge too far. Having it declared unconstitutional only adds fuel to the repeal movement, as well.

changer1701 on March 26, 2012 at 1:31 PM

The administration didn’t base their defense solely on the tax clause. They also argued, separately and distinctly, that the constitutional foundation for the mandate is found in the Commerce Clause and Necessary and Proper Clause. Even if the liberals on the Court agree that the mandate is not a tax, that doesn’t mean the mandate fails as a matter of law.

cjw79 on March 26, 2012 at 1:30 PM

FIFM

cjw79 on March 26, 2012 at 1:32 PM

I’d like to see a compromise on the whole cameras-in-the-courtoom issue. It seems to me like there is a valid argument to keeping them out, and the biggest example is the OJ trial. Judges playing to the cameras and not to the evidence; high-profile case jurors with dollar signs in their eyes, etc.

However, there is also a valid open-government reason to have them.

So the simple compromise is: film court proceedings, but only release the recordings after the verdict is in.

HakerA on March 26, 2012 at 1:32 PM

Like I have said before, a supreme court justice that upholds this law is on the fast track to retirement. I can not visualize a law, which is so blatently anti-Constitutional getting through the SC after those arguments presented today. A Supreme Court Judge who upholds this law will leave the SC in less than a year, and would probably suicide in less than a year.

That’s just how spineless the anti-Constitutionalists are.

Turtle317 on March 26, 2012 at 1:33 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

inthemiddle on March 26, 2012 at 12:48 PM

Concern troll says what?

angryed on March 26, 2012 at 1:35 PM

Do the Justices know how they will vote now?

d1carter on March 26, 2012 at 1:37 PM

Monkeytoe on March 26, 2012 at 1:29 PM

Quite right.

It isn’t wise to read too much into the questioning. Judges often play devil’s advocate in hearing against the arguments they actually favor, hoping to expose weaknesses they can address when they rule the way they damn well intended to rule in the first place.

novaculus on March 26, 2012 at 1:38 PM

I’m not sure why everyone is so quick to disregard ‘inthemiddle’s points:

Violina23 on March 26, 2012 at 1:24 PM

Because it is a troll with a name inthemiddle to (poorly) try and convince people he’s just a moderate looking at all sides impartially.

angryed on March 26, 2012 at 1:38 PM

If Ginsburg and Breyer don’t buy the tax argument, the mandate will get overturned — and not by a 5-4 vote.

oh this is gonna be good

conservative tarheel on March 26, 2012 at 1:38 PM

I don’t that’s true. How can he campaign on something that’s been struck down as unconstitutional? He can try to run against the Supreme Court I guess, and you can bet they will politicize it, but it’ll hardly hurt conservatives if the mandate is deemed a bridge too far. Having it declared unconstitutional only adds fuel to the repeal movement, as well.

I certainly hope that you are right!

guitarman67 on March 26, 2012 at 1:39 PM

If O-Care is struck down, do we immediately start to see businesses loosen up and spend money? We have seen them tighten up as they prepare for it. If so, what effect does it have on the economy in the run up to the election.

At its current trajectory, this election is shaping up to be all about the economy, and with the American people hearing over and over again that Jobs are O’s #1 priority and Republicans saying he is failing at it, does an economic rebound help the Prez?

You can point to all his other failings, but at some point they all become white noise to the electorate. You need a defining moment, a “Read my lips” moment.

By the way, when can we expect a ruling? 30 days? 90 days?

oconp88 on March 26, 2012 at 1:39 PM

I suspect not. He would need Congress to do that. Even FDR had to submit the Judicial Procedures Reform Bill of 1937 to try to get Congress to increase the Court’s size. I doubt the Republican House would agree to it. I guess he could threaten it though. Perhaps intimidation would work where legal argument didn’t?

Dawnsblood on March 26, 2012 at 1:30 PM

That’s my point. He’s that arrogant. And since when has he listened to Congress?

In his world, a war isn’t war. A no-fly zone means you bomb tanks. A penalty is a tax.

0bama has the arrogance to stuff the Court, and run right over Congress while doing so.

cane_loader on March 26, 2012 at 1:40 PM

The only problem is that if Obamacare is struck down, the GOP loses its main stalking horse and an already apathetic base will have even less wind in its sails.

Ridiculous. The base is plenty fired up already, and will be even more so if the SCOTUS finds that Obamacare is unconstitutional.
It’s a lose/lose proposition for Obama. If the law is struck down, Obama looks like a tyrant for trying to ram an unconstitutional piece of legislation down our throats. And if it’s upheld, because it is hated by the majority of people, it hurts Obama as well. The only way Obama skates out of this is if the court punts and says they can’t decide the case.

eyedoc on March 26, 2012 at 1:42 PM

Do the Justices know how they will vote now?

d1carter on March 26, 2012 at 1:37 PM

I can’t imagine they don’t have a pretty solid idea of what they’re going to do. The adage is you can’t win a case at oral argument, you can only lose it. So the justices mostly use oral arguments to probe for weaknesses and to shore up details in their own mind. They also try to subtly convince their colleagues that their position is correct by using the lawyer essentially as a backboard for making points. Unsurprisingly, Scalia is particularly good at this.

cjw79 on March 26, 2012 at 1:42 PM

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