Audio of Anthony Kennedy: The mandate fundamentally changes the relationship between citizens and the federal government

posted at 4:15 pm on March 27, 2012 by Allahpundit

Ed touched on this earlier but you should listen to the clip, as it’s surely the single most momentous exchange from today’s momentous hearing. If the mandate ends up being cashiered, this will be its epitaph.

A dirty little secret about Kennedy: He’s not nearly as centrist when it comes to the Commerce Clause and the Tenth Amendment as he is on, say, abortion and gay rights. He’s been the fifth vote for a conservative majority on several landmark cases finding limitations on federal power. I get the idea sometimes from righties who don’t pay much attention to the Court that they view him as another Souter, but that’s not remotely fair. In fact, it’s telling that he begins here by noting enumerated powers. The liberal view of the Constitution on economic regulation is, for all practical purposes, that the only restraint on federal power is the Bill of Rights. My sense of how they imagine those rights is as a sphere that’s been carved out that the feds can’t invade, but as long as they stay outside of it, they can do anything they want. In reality, of course, it’s the feds who are trapped in a sphere. That’s the point of enumerated powers — to lock them inside an area within which they can act but from which they’re not supposed to escape. Everything outside that sphere is reserved for the people and their state governments. (That’s the point of the Tenth Amendment.) Kennedy seems to take that same basic view. It’s entirely possible that he’ll drive a stake through the mandate’s heart.

But it’s also possible that he won’t:

Later on, it would appear that Kennedy had some doubt about whether the health insurance market was, in fact, a unique phenomenon. But near the end of the entire argument, when challengers’ lawyer Michael A. Carvin was at the lectern, Kennedy made a comment that he may have started to see the issue differently.

To understand its significance, the context of this later remark is important. Justice Breyer had again, as he had done several times during the challengers’ argument, stressed that Congress was confronted with a situation in whch some 40 miliion people did not have insurance, and that gap was, in fact, having an effect on commerce that was substantial. “So,” Breyer said, “I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, bujt simply whether those decisons of that groujp of 40 milliion people substantially affect the interstate commerce that has been set up in part” through a variety of government-sponsored health care delivery systems. That, Breyer told Carvin, ”the part of your argument I’m not hearing.”

Carvin, of course, disputed the premise, saying that Congress in adopting the mandate as a method to leverage health care coverage for all of the uninsured across the nation. Kennedy interrupted to that that he agreed “that’s what’s happening here.” But then he went on, and suggested that he had seen what Breyer had been talking about. “I think it is true that, if most questions in life are matters of degree,” it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “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.”

If Kennedy can be persuaded that health care is sui generis, maybe he’ll split the baby by voting to uphold ObamaCare while emphasizing that a mandate for any other industry would be flatly unconstitutional. Not sure how that argument will work — listen to Roberts in the second clip below wonder why a cell-phone mandate would be any different than one for health insurance — but that’s the left’s best hope. Speaking of which, their explanation for today’s disaster appears to be not that they have a weak case on the merits but that Donald Verrilli’s performance was the legal equivalent of fumbling 10 times in the Super Bowl. In fairness to them, some of his exchanges with the Court are painful to read; the liberals on the bench had to bail him out repeatedly. But look: No case of this magnitude is being decided by oral arguments. If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors. Obama has four very good lawyers on his side in the Supreme Court’s chambers. Verrilli’s performance is unfortunate and terrible optics for O-Care’s superfans, but it’s not changing any votes.

Here’s the full transcript of today’s argument and complete audio. If you have the time, dive in.

Update: Orin Kerr notes the million-dollar phrase in Kennedy’s comments today: “Heavy burden of justification.” He didn’t suggest that mandates are always and everywhere unconstitutional, only that in order to justify using one the feds need to point to some very special and compelling circumstances. The whole question now is whether the allegedly “unique” health-care market is special and compelling enough to get Kennedy to vote with the left.

Update: To see what I mean about the liberal view of the Constitution, read lefty Michael Tomasky wondering why we can’t settle this issue with simple democracy. America elected a Congress that passed a mandate; if the people don’t like the mandate they came up with, let ‘em elect a new Congress to undo it. In other words, in lieu of enumerated powers in Article I, he’d apparently let Congress run wild with regulation and leave it to voters to rein them in. That’s a fine idea, and the Court’s ridiculously expansive Commerce Clause jurisprudence sometimes flirts with it, but it’s not the system we have. Enumerated powers mean something or they don’t.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 2 3 4

it sure does. it makes it a master / slave relationship

DrW on March 27, 2012 at 4:16 PM

I don’t want to buy a Volt – please stop O-Blame-a before he makes us.

Philly on March 27, 2012 at 4:19 PM

Enjoying watching all of the Liberals on CNN and MSNBC freak out this afternoon. Too cool.

brewcrew67 on March 27, 2012 at 4:19 PM

In fact, it’s telling that he begins here by noting enumerated powers.

Now there is a timely lesson. Thank you!

ted c on March 27, 2012 at 4:19 PM

I don’t know, I hear that Americans had it pretty good under King George.

Why are you wing ding dongs afraid of pretty goodness?

Bishop on March 27, 2012 at 4:19 PM

you know, the broccoli analogy is actually much strongr than i realized. just as the liberals say that the product is not health insurance but rather health care, Alito today turned the tables on the SG and stated that the product is not broccoli but rather the consumption of food. in both cases the govt could require you to purchase a product to prevent the market from being disrupted. very neat. apparently, Ruth BG had to literally rescue the fumbling SG.

DrW on March 27, 2012 at 4:20 PM

Verrilli’s performance is unfortunate and terrible optics for O-Care’s superfans, but it’s not changing any votes.

Shouldn’t it, though? This is the guy going up to bat for it, and he strikes out…that should tell them something about the supposed constitutionality of the legislation. No other justices should have to make his argument for him.

changer1701 on March 27, 2012 at 4:20 PM

Enjoying watching all of the Liberals on CNN and MSNBC freak out this afternoon. Too cool.

brewcrew67 on March 27, 2012 at 4:19 PM

you’ll love the headline over at Huff PO. 60 point type in Blood Red..Obama Care Hangs By a Thread!

muwahhhhhhh!

DrW on March 27, 2012 at 4:21 PM

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

Rational Thought on March 27, 2012 at 4:21 PM

Donald Verrilli’s performance was the legal equivalent of fumbling 10 times in the Super Bowl

Seriously, they are trying to defend the Liberal Wet Dream Act of 2009, and they roll out this bocephus…brilliant, just like their Pres…

hillsoftx on March 27, 2012 at 4:23 PM

The court may decide that it’s something that individual states can do, but not something that the federal government has the power to mandate. They may end up agreeing, sort of, with Romney, which might somewhat vindicate Romney.

RBMN on March 27, 2012 at 4:23 PM

And hands off our light-bulbs while you’re at it.

Urban Infidel on March 27, 2012 at 4:23 PM

The Constitution which established our form of governance is a limiting document, not a permissive document, thus there are specific limits to what government can do rather than limits on what the People can do.

As it should be.

If the Obamacare mandate is held to actually be Constitutional, then nothing remaining of the Constitution need apply…as upholding the mandate removes all limits on the invasive power of government into the lives of private citizens.

Once that Rubicon is crossed…

coldwarrior on March 27, 2012 at 4:23 PM

“… the liberals on the bench had to bail him out repeatedly.”

Don’t you just love it when a plan comes together…?

/

Seven Percent Solution on March 27, 2012 at 4:23 PM

I sure hope he doesn’t cave

cmsinaz on March 27, 2012 at 4:23 PM

Have stake. Hammer ready.

Turtle317 on March 27, 2012 at 4:24 PM

He’s been the fifth vote for a conservative majority on several landmark cases finding limitations on federal power. I get the idea sometimes from righties who don’t pay much attention to the Court that they view him as another Souter, but that’s not remotely fair.

Susette Kelo may wish to have a word with you about that, from wherever she lives now.

KingGold on March 27, 2012 at 4:25 PM

Justice Kennedy actually said what the rest of us have known from the get-go.

I suppose I should celebrate this, but it ain’t over yet.

listens2glenn on March 27, 2012 at 4:25 PM

So how did Verrilli get the job? A big Obama donor?
That’d be some great poetic justice there!!!

Marcola on March 27, 2012 at 4:25 PM

Verrilli’s performance is unfortunate

Verrilli sounds either woefully ignorant or childishly dismissive of Justice Roberts’ very simple point.

In what universe are cell phone services NOT a market?

Did Verrilli study law with Pokemon cards?

Terp Mole on March 27, 2012 at 4:26 PM

I’m betting SCOTUS will uphold the mandate, if only because this is an election year and they don’t want to be seen as influencing the result. The Supreme Court hasn’t stood up to the Executive Branch in any meaningful way since Schlecter Poultry Corporation v. United States. The Judicial Branch tries so hard to stay so far above the fray that its forgotten its purpose.

Hint: The US Government is not The United Federation of Planets. We don’t have a Prime Directive.

troyriser_gopftw on March 27, 2012 at 4:27 PM

If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors.

It’s unclear how much influence they would have on him. I recall Larry Tribe’s unintentionally funny letter to the White House on the Sotomayor nomination.

Tribe was worried because now that Stevens was gone, and Souter going, no one was around to influence Kennedy, as Breyer and Ginsberg “did not have purchase on Tony Kennedy’s mind.”

Tribe wanted Kagan for the first nomination, as he thought she would be able to influence him. I think Tribe’s worry was that without a Stevens or Souter or Kagan, Kennedy would drift into the conservative orbit.

Kagan is there now, but there was a gap in time, and the Tribe letter of course, may have put Kennedy off listening to Kagan.

Wethal on March 27, 2012 at 4:27 PM

If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors. Obama has four very good lawyers on his side in the Supreme Court’s chambers.

I wonder how this knowledge will influence Kennedy. It has to make an impression on him that the liberal justices appear to have their minds so made up, even before hearing any arguments, that they are basically making the case for Obama’s attorney during the hearings.

I think a reasonable person would see this as a gigantic red flag.

Kataklysmic on March 27, 2012 at 4:27 PM

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 -­”

F**KING GOLD.

MadisonConservative on March 27, 2012 at 4:28 PM

liberal4life hooked up with KeninCT and are both unavailble for comments.

Schadenfreude on March 27, 2012 at 4:28 PM

If the government can tell that we must buy something because we exist we go from being a free people to a ruled people.
Obama has put 2 far left flunkies on the Supreme court. See why it is important to win elections?

V7_Sport on March 27, 2012 at 4:28 PM

On a related note, what happened to the noise Senator Jeff Sessions was making a few months back on whether or not Kagan had perjured herself in her written answers regarding her involvement in ObamaCare as Solicitor General??

INC on March 27, 2012 at 4:28 PM

Obamacare: The only shovel-ready job Obama ever created.

ted c on March 27, 2012 at 4:29 PM

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 -­”

“It’s all in the communicatio; Verrilli forgot his prompter” –Obama

Schadenfreude on March 27, 2012 at 4:29 PM

Why not just expand Medicaid for those who are too poor to afford insurance and fine those who can afford it but do not provide their own and still expect to mooch off the system when they become ill?

No mandate for all!

Cover the unfortunate and penalize the able-bodied freeloaders.

profitsbeard on March 27, 2012 at 4:29 PM

Then again, the USSC’s ruling on Dred Scott v. Sandford was made for purely political reasons. Expedience is too often the destroyer of law…and nations.

coldwarrior on March 27, 2012 at 4:30 PM

First time since the 2010 mid terms that I’ve watched CNN and MSNBC all day. Pure joy.

kevinkristy on March 27, 2012 at 4:31 PM

I ws going to request Humpbot be broken out for AP writing an article defending the strict Constitutionalist view as well as anyone.

I foolishly thought for a moment he would transition from that point into how Kennedy might influence Souter into becoming a sixth vote against the mandate.

{sigh} How foolish of me. AP’s inner Eeyore breaks through and turns good news into bad.

No Humpbot for he.

PolAgnostic on March 27, 2012 at 4:31 PM

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

I agree with this. but the killer to insurance companies is not the kids until 26. Its the pre-existing conditions.
However i suspect if it stays in it will just raise all our premiums.

the 26 year old rule is in mass. upt to 26 year olds are NOT automatically covered. its just that an insurance company cannot
refuse to cover a child up to 26 if the parents request it

gerrym51 on March 27, 2012 at 4:32 PM

Seems to me the likely outcome is Kennedy coming down against the mandate, but severing it from the rest of law and holding the remainder constitutional. Roberts would be in the majority and thus write the majority opinion in a 5-4 vote.

Alito and Thomas (perhaps even Scalia) would write concurring opinion(s) claiming the entire law to be unconstitutional. A few on the left would probably draft some separate dissents as well.

Basically you end up with a 5-4 decision against the mandate, but probably a 5-4 or 6-3 in favor of upholding the law as a whole. At that point you’d have a plurality (perhaps a majority), punting the law back to Congress to find a way to pay for the thing. That’s when things will get nuts… 2013 with a GOP House, a cliffhanger either way in the Senate, and Obama likely back for a second term after a narrow win over Romney.

That’s my take.

pwh on March 27, 2012 at 4:32 PM

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

topdog on March 27, 2012 at 4:33 PM

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?”

Because Barack Obama had promised that no one making under 250K would see any increase in their taxes, any kind of tax, that’s why.

(And yes, I know Geraghty’s maxim, “All of Barack Obama’s statements come with expiration dates. All of them.”)

Wethal on March 27, 2012 at 4:33 PM

Kennedy: The mandate fundamentally changes the relationship between citizens and the federal government

Liberty.

petefrt on March 27, 2012 at 4:34 PM

Everything outside that sphere is reserved for the people and their state governments.

Now they want US inside that sphere.

“The natural progress of things is for liberty to yield, and government to gain ground.” Thomas Jefferson

Chip on March 27, 2012 at 4:35 PM

It was nice of Verrilli to allow the anti-constitutional ideologu…er, I mean liberal justices…to make his arguments for him today. That way they were able to engage in the process a little bit, instead of just sitting there, silently reviewing their list of reasons for supporting Obamacare.

Dee2008 on March 27, 2012 at 4:36 PM

I thought he was just playing devil’s advocate…but I hope I am wrong.

d1carter on March 27, 2012 at 4:36 PM

Kennedy is a liberal. He’s gonna uphold the mandate. Ugh.

terryannonline on March 27, 2012 at 4:36 PM

Wethal on March 27, 2012 at 4:27 PM

Thanks for the info. I missed reading/hearing about the letter.

INC on March 27, 2012 at 4:36 PM

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

Rational Thought on March 27, 2012 at 4:21 PM

Wow. That gave me chills.

MadisonConservative on March 27, 2012 at 4:36 PM

Getting nervious….individual mandates. This is a issue that will DEEPLY divide the country if it passes.

Oil Can on March 27, 2012 at 4:37 PM

I think Kennedy thinks like a libertarian. If this is true, then the leftwingers on the bench aren’t going to make him budge on this issue.

Red Creek on March 27, 2012 at 4:37 PM

ReCall/RePeal ComeUppance!

canopfor on March 27, 2012 at 4:38 PM

It scares me how razor thin the margin for our future lies.

Ukiah on March 27, 2012 at 4:38 PM

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

topdog on March 27, 2012 at 4:33 PM

But you still have to purchase the phone.
I think we have a choice to opt out from buying a cell phone, today.

Electrongod on March 27, 2012 at 4:38 PM

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

topdog on March 27, 2012 at 4:33 PM

True, but just because we have to pay for the 911 service, doesn’t mean that we ever use it. Some folks have never dialed 911, whereas others dial it all the time. It is clear that paying for 911 service is a tax for a service, but it is not guaranteed that one will ever use 911 service, nor healthcare services. There are people that do not go to see HC providers you know.

ted c on March 27, 2012 at 4:38 PM

Liberals view the constitution as calvinball.

lorien1973 on March 27, 2012 at 4:39 PM

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

topdog on March 27, 2012 at 4:33 PM

Most 911 services are local, and funded locally. Thank God.

Can you imagine a Federal 911 system? “Your call is important to us and the average wait time is 37 minutes…”

Difficultas_Est_Imperium on March 27, 2012 at 4:39 PM

We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills…

That’s a bad argument in my opinion. In other words, because you have to pay $1 a month in emergency phone call coverage, we’ve got the power to enact a social contract-changing mandate with a price tag of trillions of dollars. If that is the best argument the Obama administration can muster, ACA is DOA.

pwh on March 27, 2012 at 4:39 PM

What’s nimrod Scalia saying when Obama’s minions throw Gonzales v. Raich in his face?

EddieC on March 27, 2012 at 4:39 PM

Prediction..Alana Kagan,votes in favour of Hopey!!

canopfor on March 27, 2012 at 4:39 PM

Dee2008 on March 27, 2012 at 4:36 PM

Sorta like those judges during the trials following that little von Stauffenberg episode back in the day.

coldwarrior on March 27, 2012 at 4:39 PM

Romney had no problem making that change at the state level.

astonerii on March 27, 2012 at 4:40 PM

Great work, AP. Yet I consider it implausible that the liberal judges will have much persuasion on Kennedy’s position unless they have incriminating photos of him. As a nation we have never encountered this overreach of a mandate (or call it a tax) based on inactivity. There is no consumption involved but that what is “expected” to be likely to take place in the future. For their argument to hold any merit, they would have to advance the science to Gattaca levels.

John the Libertarian on March 27, 2012 at 4:40 PM

“It’d be like trying to solve homelessness by mandating that everyone buy a house.” – Barack Obama (Dem debates)

(He became more flexible after he was elected)

mankai on March 27, 2012 at 4:41 PM

pwh on March 27, 2012 at 4:32 PM

There’s tomorrow’s argument – the huge medicaid obligations on the states that could end up taking 70% of state revenues to meet the federal medicaid mandate.

Obamacare expanded medicaid up to take in more people. Generally the court has held that if you want federal money, you take it with federal strings. I think there is one case in which the Court said the burden of the strings was just too much, but generally it has been, “Don’t want the strings. Don’t take the money.”

Wethal on March 27, 2012 at 4:41 PM

Speaking of which, their explanation for today’s disaster appears to be not that they have a weak case on the merits but that Donald Verrilli’s performance was the legal equivalent of fumbling 10 times in the Super Bowl.

No surprise there. Standard MO. It can’t be the policy that’s wrong,..it just isn’t being messaged properly. Where have we heard that before?

a capella on March 27, 2012 at 4:41 PM

Can this ultimately bring a challenge to the state level mandates ?

FlaMurph on March 27, 2012 at 4:42 PM

calvinball.

lorien1973 on March 27, 2012 at 4:39 PM

exactly.

John the Libertarian on March 27, 2012 at 4:42 PM

O/T,

US House of Representatives passes JOBS Act, 380-41;

bill aimed at helping small businesses goes to president for signature

Submitted 2 hours ago
http://www.breakingnews.com/
============================

canopfor on March 27, 2012 at 4:42 PM

Obama’s best chance at re election is if the loses this case.

If he does, the main argument for retiring him will be off the table, and many fence sitters will go ahead and vote for him again.

On the other hand, if Obamacare is upheld, conservatives will be invigorated at all levels, Obama is in trouble and the House will stay GOP.

Labamigo on March 27, 2012 at 4:43 PM

What’s nimrod Scalia saying when Obama’s minions throw Gonzales v. Raich in his face?

EddieC on March 27, 2012 at 4:39 PM

Wow. One of our most vocal Romney supporters is in favor of Obamacare. I’m shocked. Shocked, I tell you.

And before you say that you’re not, why are you attacking a Conservative Judge?

kingsjester on March 27, 2012 at 4:43 PM

“It’d be like trying to solve homelessness by mandating that everyone buy a house.” – Barack Obama (Dem debates)

(He became more flexible after he was elected)

mankai on March 27, 2012 at 4:41 PM

Heh. He must not be able to blush.

a capella on March 27, 2012 at 4:43 PM

Can this ultimately bring a challenge to the state level mandates ?

FlaMurph on March 27, 2012 at 4:42 PM

I don’t think so. The question before the court is strictly about limiting the powers of the Congress.

Rational Thought on March 27, 2012 at 4:44 PM

As a citizen listening to this hearing, I am finding it a great opportunity to take the time to learn more. Today’s lesson for me is “law of torts”. No need to sit back and watch helplessly, but let’s make the effort to thoroughly inform and educate ourselves.

It must be through truth that we restore this nation.

pjean on March 27, 2012 at 4:44 PM

The contract issue is a major deal as well. No contract can be enforced if a party is forced into that contract. But this works both ways. If someone gets cancer today, then goes to get insurance tomorrow, the govt is forcing the company to enter into a contract against it’s will.

As a side note, I have always wondered how the NLRB can force mgmt and a union to perform a transaction when one of the sides does not want to join in the contract. It seems illegal to me. I guess in the end both sides agree, who knows. If Mgmt says I do not like the services you will provide at that cost, then why can’t mgmt hire non-union people?

I am aware that state laws force a lot of this, but the NLRB is national.

jeffn21 on March 27, 2012 at 4:44 PM

It scares me how razor thin the margin for our future lies.

Ukiah on March 27, 2012 at 4:38 PM

Ironic that the “cure” of Obamacare has been giving more than half the country dangerously high blood pressure for the last two years.

John the Libertarian on March 27, 2012 at 4:44 PM

When are we going to stop Federally Funding RomneyCare ??? Is Romney going to stop propping up RomneyCare with Federal Funds???

Y314K on March 27, 2012 at 4:44 PM

You know, I’m wondering how many of the justices remember Obama’s infamous name ‘em and shame ‘em at the State of the Union.

Wouldn’t it be high-larious if the opinion went something like this?

Question: Is the individual mandate constitutional?

Ruling by the Majority (J. Alito, authoring): “Not true.”

KingGold on March 27, 2012 at 4:44 PM

pwh on March 27, 2012 at 4:32 PM

I think that’s fairly accurate, except I don’t see Barry winning if his crew focuses on Healthcare.

Barry cannot run on fixing Obamacare with $5 gas, stagflation and people froze out of a summer vacation for the fourth straight year because he’s obsessed with healthcare. Indie voters are going to think he’s OCD, that this guy will not give it up no matter WTF else is going wrong. In other words, he’ll look nuckin futs.

budfox on March 27, 2012 at 4:44 PM

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

topdog on March 27, 2012 at 4:33 PM

But they don’t mandate we have to have a cell phone (yet).

And that 911 tax is justified as a means to fund 911 services.

Bitter Clinger on March 27, 2012 at 4:45 PM

It scares me how razor thin the margin for our future lies.

Ukiah on March 27, 2012 at 4:38 PM

~~~~

Yep…my sentiments exactly.

ellifint on March 27, 2012 at 4:46 PM

Leftists want the Constitution to say whatever it wishes to say. They will twist and turn so that the Constitution fits their beliefs.

terryannonline on March 27, 2012 at 4:46 PM

How long before a ruling is handed down..?

d1carter on March 27, 2012 at 4:46 PM

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

Rational Thought on March 27, 2012 at 4:21 PM

I don’t know if the Solictor General is throwing it on purpose or not, but your point is spot on.

If Supreme Court only strikes down the mandate, but leaves the rest of Obamacare intact, we are guaranteed a single payer system in very short order. No one would need to buy health insurance in advance. They could simply wait until they needed it. Such adverse selection would shortly bankrupt any insuror foolish enough to continue writing business.

All states have certain procedures required for an insurance company to withdraw from a market, and those procedures often take years. Should Obamacare survive without the individual mandate, insurance companies will be forced to immediately start on shutting down their health insurance operations.

MessesWithTexas on March 27, 2012 at 4:47 PM

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

Rational Thought on March 27, 2012 at 4:21 PM

There is some precedent on this. An unanimous opinion from the Rehnquist years called Duquesne Power & Light.

You cannot regulate a business out of business by making it impossible to earn a fair profit. Don’t recall the details, but Richard Epstein of U Chicago Law (who had a few things to say about former law school colleague Obama elsewhere), had a column on it in the WSJ in late 2010.

Wethal on March 27, 2012 at 4:47 PM

Wow. One of our most vocal Romney supporters is in favor of Obamacare. I’m shocked. Shocked, I tell you.

And before you say that you’re not, why are you attacking a Conservative Judge?

kingsjester on March 27, 2012 at 4:43 PM

LOL. Because I can’t stand Santorum, I’m a Romney supporter?

I’m attacking Scalia because of his atrocious opinion in Gonzales.

EddieC on March 27, 2012 at 4:48 PM

Kennedy does scare me. He might pull a this-and-no-further ruling and call it a compromise, which it wouldn’t be; just a CYA punt.

The very nature of a contract is that it’s entered into VOLUNTARILY by the consenting parties. This is not Luca Brasi holding a gun to Johnny Fontaine’s manager’s head and assuring him that either his brains or his signature will be on that paper. You cannot force someone into a contract with someone else. By definition, that is not a contract. It’s coercion.

In a sane world, this decision would be a 7-2, maybe 6-3 at worst, to overturn. The fact that we are biting our nails over something that is so obviously, blatantly unconstitutional speaks volumes of how far we have fallen since FDR tried to pack the courts.

Rixon on March 27, 2012 at 4:48 PM

Can this ultimately bring a challenge to the state level mandates ?

since only one state has mandates-mass.-i would say no.

some one would have to bring a mass. state specific challenge.

however the states do have the power to force mandates. just not the feds

gerrym51 on March 27, 2012 at 4:49 PM

Have stake. Hammer ready.

Turtle317 on March 27, 2012 at 4:24 PM

I wish that were true. We can kill it in the courts, repeal next year, and still fight this fight til the end of time.

The liberals will just try to pass another socialized medicine bill the next time they win office. Eventually they will and we will not be able to repeal it or kill through the supreme court. I just hope me and my family are long gone by then.

jeffn21 on March 27, 2012 at 4:49 PM

In terms of the actual vote breakdown, the four liberal justices will vote to uphold. There is no hope whatsoever of swinging any of those four.

They keys here will be Kennedy and Scalia. Alito and Thomas will vote to strike the whole thing regardless. Roberts, too, is likely a reactive vote either way. As Chief Justice on such a massive case, he’s going to want to be in the majority, so he won’t lead the cause either way. He will seek to persuade the other justices to his thinking in chambers, but in the end he’ll follow the majority, wherever that takes him.

Obama and the left need to pick up either Kennedy or Scalia. If they can get either one of those two, they’ll pick up Robers as well and win 6-3. If they miss on Kennedy and Scalia, the mandate gets struck down 5-4 with Roberts writing the majority opinion.

pwh on March 27, 2012 at 4:50 PM

None of this matters. If it is struck down/repealed, the queen of HHS with reinstate the whole thing by royal decree. We live in a monarchy where congress has little relevance. ONE MORE THING: Obama WILL approve the pipeline this summer. The queen of homeland security and the queen of the EPA have passed royal decrees that will ensure that it will never be built so he will just approve it and score on both sides politically

Redglen on March 27, 2012 at 4:50 PM

And I hope Kennedy is still fuming over the way he and the justices were pimp-slapped a the SOTU speech a couple of years ago.

Rixon on March 27, 2012 at 4:50 PM

States are not limited to enumerated powers; the federal government is.

Attention ABRtards, for the nth time: That’s the difference between Romneycare & Obamacare.

Dark Star on March 27, 2012 at 4:51 PM

The government thinks in the best interest of healthcare that everyone joins a gym. FYI, the gym is unionized.

The government thinks in the best interest of healthcare that CO2 is pollutant and must be regulated.

The government thinks in the best interest of healthcare that Urban sprawl is bad, it causes stress. Housing must be regulated to City centers with mass transit and high speed rails.

Oil Can on March 27, 2012 at 4:51 PM

In fairness to Verrilli, just put yourselves in his shoes. You are arguing what might be the 2nd biggest case in Supreme Court history, only after Marbury v. Madison. I doubt he has slept in days, he must have been nervous as hell, and he couldn’t even think straight. I know he was a top litigator at Jenner & Block and has superb credentials, but he is still human. So, I know Verrilli is getting slack today for doing a bad job, but I seriously doubt there are many lawyers who would have stayed composed and done a better job.

The fact is simply that Verrilli has a bad argument. The law does not support his position, and he has to try to spin the commerce clause jurisprudence, which has been coming back from an expansive interpretation, to get Kennedy to agree with him. It’s a tough job for anyone.

milcus on March 27, 2012 at 4:52 PM

Barry’s people are not throwing the case.

They never expected it to make it this far, and now they’re relying on the lefty judges.

You have to go by how sure the MSM lefties were over the ruling. Dead-set confidence to the point they were wondering if Thomas would be the sole holdout. Now, they’re looking at Solomon splitting the baby, which they know won’t work and will force a total restructure of Obamacare.

If that’s the case, then bases will be motivated, which is exactly what Barry does not need to win. Obama needs suppressed turnout, because the summer is going to suck wind thanks to gas and inflation.

budfox on March 27, 2012 at 4:52 PM

O/T,………..EarthQuake!

NBCLA tweeted:
**************

#BREAKING:
*************

“Magnitude-3.5 Earthquake Hits Near Fontana” Did you feel it?

http://t.co/vi73vVUl
Submitted 10 mins ago from twitter.com/NBCLA
http://www.breakingnews.com/
============================

2.6…..GREATER LOS ANGELES AREA, CALIFORNIA

3.5…..GREATER LOS ANGELES AREA, CALIFORNIA

http://earthquake.usgs.gov/earthquakes/recenteqsww/Quakes/quakes_all.php

canopfor on March 27, 2012 at 4:52 PM

What a weak weak weak logic and argument about cell phones from a supposed smart supreme court justice WTF!!!!! Who forged roberts transcript, what an idiot.

0bamaderangementsyndrom on March 27, 2012 at 4:52 PM

I am aware that state laws force a lot of this, but the NLRB is national.

jeffn21 on March 27, 2012 at 4:44 PM

Commerce Clause power of Congress, probably. Employer and union are involved in interstate commerce in some way. Few businesses are entirely intrastate.

Wethal on March 27, 2012 at 4:52 PM

Well they’re not good at interpreting the Constitution… they showed that in the Yahoo News article yesterday:
http://ca.news.yahoo.com/rejecting-obamacare-grave-profound-232716680.html?bcmt_s=e

Q:) What is at stake in this hearing?

A:) If the Supreme Court struck this down, I think that it wouldn’t just be about health care. It would be the Supreme Court saying: ‘Look, we’ve got the power to really take decisions, move them off of the table of the American people, even in a democracy. And so it could imperil a number of reforms in the New Deal that are designed to help people against big corporations and against, indeed, big governments. The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.

That is from Neal Katyal, who as acting US Solicitor General.

We live in a Democracy; not a Constitutional Republic where a CONSTITUTION might limit the power of the government, but a democracy where the majority can do anything and mob rule holds sway.

SINCE WHEN?

If the acting Solicitor General of the United States can’t properly identify OUR OWN FORM OF GOVERNMENT then we’ve got problems beyond just this case…

Seriously, a democracy? Two wolves and one sheep vote on what is for dinner, that’s a democracy… I want no part of it.

So no, I’m not surprised to hear they’re confused by the law and their own arguments… they’re not really that clever. Which is what makes it so sad that they’ve gotten this far being this stupid.

gekkobear on March 27, 2012 at 4:52 PM

EddieC on March 27, 2012 at 4:48 PM

Oh, so you’re just a Lib, then? After all, you’re attacking a Conservative Judge who will be instrumental in overturning Obamacare. What other reason would you have to be doing that right now on a onservative site?

kingsjester on March 27, 2012 at 4:53 PM

You cannot regulate a business out of business by making it impossible to earn a fair profit. Don’t recall the details, but Richard Epstein of U Chicago Law (who had a few things to say about former law school colleague Obama elsewhere), had a column on it in the WSJ in late 2010.

Wethal on March 27, 2012 at 4:47 PM

Is it different at the state level? Washington State ran Aetna and other insurance providers out of the state through overregulation.

John the Libertarian on March 27, 2012 at 4:53 PM

This just shows we need more conservatives to into law. Unfortunately our legal system is full of Leftists.

terryannonline on March 27, 2012 at 4:53 PM

I wonder how this knowledge will influence Kennedy. It has to make an impression on him that the liberal justices appear to have their minds so made up, even before hearing any arguments, that they are basically making the case for Obama’s attorney during the hearings.

I think a reasonable person would see this as a gigantic red flag.

Kataklysmic on March 27, 2012 at 4:27 PM

Kennedy will no doubt wrestle with his soul in one way considering that regardless of what the four cheerleaders on the bench are doing, the issue must be settled on its own constitutional merits. He may give it more consideration than it deserves to be fair.

No putting this issue to bed until the opinion is written. No doubt about the headlines though if it fails:

“Obamacare decision split along party lines”

As if the Constitution is a party line document.

itsspideyman on March 27, 2012 at 4:55 PM

Anthony Kennedy: The mandate fundamentally changes the relationship between citizens and the federal government

Uh…folks, this is a win from the Obamanaut perspective.

“Fundamentally transform….”

BobMbx on March 27, 2012 at 4:55 PM

Comment pages: 1 2 3 4