“‘The government had in my view as bad a day as it reasonably could have,’ said Tom Goldstein, founder of SCOTUSblog and a regular litigator at the high court. ‘It won’t cause the government to have a complete cardiac arrest — they’ll just be nauseous for months. … The only people coming out of that building optimistic today were the plaintiffs.’…
“In the orgy of panel discussions, interviews and feature articles previewing this week’s arguments, law professors, Supreme Court litigators and journalists confidently predicted that the justices would uphold the individual mandate as a logical extension of the federal government’s well-established ability to regulate the health insurance market…
“Within the first few minutes of Tuesday’s arguments, that bravado seemed to go out the window.
“‘Eventually, the conventional wisdom will catch up with reality,’ Goldstein joked. ‘It’s absolutely true that this argument has gotten the back of the hand from the legal glitterati, including myself.'”
“Sorry to keep reiterating this point, but I’ve contended since December 2010 that if the pro-ACA side is unable to articulate a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.
“Unfortunately for the law’s defenders, the SG today lapsed into incoherence when Justices Alito, Kennedy, and Scalia asked him to identify a limiting principle (check out various liberal blogs for apoplectic reactions to SG Verrilli’s performance)…
“So far, we seem to be left with the ‘health care is special’ argument, which is not a limiting principle, but could persuade a conservative justice or two to join a limited holding. Yet Justice Kennedy suggested today that if the ACA is upheld, the government will soon be back arguing that some other sector of the economy is ‘special.’ Not a good day for limiting principles.”
“Unlike Scalia and Alito who were more animated with their comments expressing doubt about the law’s validity, Chief Justice John Roberts plainly offered some of his own concerns that at times mirrored Kennedy’s.
“He used the phrase ‘all bets are off’ twice when talking about the ways future Congresses will attempt to fix perceived problems if the law survives. ‘There’s this health care market. Everybody’s in it. So we can regulate it, and we’re going to look at a particular serious problem, which is how people pay for it. But next year, they can decide everybody’s in this market, we’re going to look at a different problem now, and this is how we’re going to regulate it. And we can compel people to do things — purchase insurance, in this case. Something else in the next case, because you’ve — we’ve accepted the argument that this is a market in which everybody participates.’
“Some of the justices wondered whether the government could compel people to exercise, eat broccoli or buy certain cars if the mandate is upheld. Verrilli maintained that wouldn’t be the case.”
“Reaction in the press room, although mixed, seemed more negative than reaction elsewhere. My canvassing of legal experts found pretty mixed opinions on how the case will turn out. (Walter Dellinger, the Duke law professor who supports the law, pointed out that the plaintiffs effectively made it clear that the only way to create national health insurance would be through a single-payer system, an idea most conservatives detest.)…
“One other note: As somebody who knows the policy issues, the hearing was incredibly frustrating to watch. Both judges and lawyers, on both sides, seemed not to understand the specifics of the health care market and why it would (or would not, depending on your legal philosophy) make the mandate constitutional. But, of course, that’s a pretty good argument for why judges should leave legislative judgment to the legislative branch.
“That was Verrilli’s point at the end, during final summation: That, by striking down the mandate, the judiciary would be committing an aggressive act of judicial review, stepping into matters traditionally reserved for the democratically elected Congress and president. I happen to think he’s right about that. Whether five justices of the court agree, alas, is pretty unclear at this point.”
“[W]ith a bit of political jujitsu, the president could turn any such defeat into a victory for a single-payer healthcare system — Medicare for all…
“If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.
“When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.
“If they did this the public will be behind them — as will the Supreme Court.”
Via Reason TV.