Open thread: Mandate-mas II, the Revenge; Update: No life sentence without parole for juveniles; Update: Key part of SB1070 upheld … for now; Update: Mandate-mas definitely on Thursday
posted at 9:21 am on June 25, 2012 by Ed Morrissey
Last Thursday was a bust, at least as far as the two most anticipated cases before the Supreme Court this term. We’re almost certain to get a ruling on one of them this morning, the challenge to Arizona’s SB1070 immigration-enforcement law. However, we may not see anything on ObamaCare until the last day of the session, on Thursday of this week. The fine SCOTUSblog noted last week that the Supreme Court had not designated today as the final reporting day of the 2011-12 session, which means that they may have decided to give the challenge to ObamaCare its own day for the release.
This may just extend the pain for Barack Obama, as Jamie Weinstein argues that the problem for the White House is the bill’s unpopularity regardless of whether the court overturns it in whole or in part this week:
Fairly or unfairly, his health care law — his signature domestic achievement — remains significantly unpopular. The latest AP/GfK poll showed that only 33 percent of Americans support the plan while 47 percent oppose it.
So in the best-case scenario for the president, he is left with an intact law that remains difficult to campaign on since so many Americans aren’t particularly enthused with it. Republicans would also be able to continue to use the unpopular law to their advantage by campaigning against it and charging that Obama wasted too much time and effort (and political capital) — when the economy was in dire straights — ramming it through.
But many legal analysts think it is unlikely President Obama will face this bad outcome. He is more likely to face an even worse one.
A poll of 56 attorneys who formerly clerked for Supreme Court justices revealed that 57 percent of them believe that at minimum, the law’s individual mandate provision will be ruled unconstitutional.
But if the Supreme Court invalidates the individual mandate while leaving the rest of the law alone, Obamacare would be unworkable financially without something to replace the mandate’s function. Even House Minority Leader Nancy Pelosi has admitted as much.
Mark Halperin tells Morning Joe that no matter the outcome, it’s bad for Obama:
Even a partial overturning will shock the White House, according to the New York Times. They were convinced that the court would leave it in place, until oral arguments in March stunned them into considering for the first time that the Supreme Court might have had enough of abuse of the interstate commerce clause:
Democrats, and some Republicans, were so sure from the start because the concept of requiring Americans to obtain insurance or pay a penalty had originally been advanced by conservatives to avoid government-run health care. The Constitution authorizes Congress to regulate interstate commerce, but critics argued that rather than regulate activity, the law regulated inactivity — in other words, the choice of some Americans not to buy a commercial product.
Democrats who tried to warn their party of that risk were brushed off. When Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, wrote such an article in Newsweek in March 2009, a pair of law professors disputed him in print. …
Donald B. Verrilli Jr., who became solicitor general last June, rehearsed in multiple moot court sessions. But on the critical day of Supreme Court arguments on March 27, he momentarily choked on a drink of water and was hammered by justices skeptical of his argument. He gave a rambling answer about the limits of Congressional power and had a hard time controlling the discussion as he was peppered with questions. Commentators gave him harsh reviews, but Mr. Obama called him to show support.
Either way, administration lawyers were more disturbed by what the justices had said. They were disheartened that Justice Antonin Scalia, who had joined a ruling upholding a previous commerce clause case, seemed so hostile. Kathryn Ruemmler, the White House counsel, was said to be disturbed that Justice Anthony M. Kennedy, often the swing vote, suggested that the government had a “heavy burden.”
Some of them still believe:
But current and former administration lawyers hold out hope. “I walked out of the court thinking we were going to win — not unanimously,” Mr. Weiner said. “I’ve heard a lot of these arguments. That was my gut, and I’m sticking with that.”
My gut tells me we won’t find out today — but we’ll get some interesting cases to review. Be sure to keep up with the liveblog at SCOTUSBlog, and we’ll add updates as we go. In case we do get a decision today on ObamaCare, I’ll predict that the mandate gets overturned 6-3 and the whole law 5-4.
Update: The first case involved a juvenile sentenced to life without parole for a crime committed at 14. That got overturned 5-4, with the court ruling that it violates the Eighth Amendment bar on cruel and unusual punishment. Kagan wrote the majority opinion, and Alito the dissent.
Update II: Looks like the key part of Arizona’s SB1070 got upheld — the part that required state and local law enforcement to check immigration status on detained individuals. Scalia wanted to uphold the entire law, but a couple of provisions did get struck down. Kennedy wrote the majority opinion.
Update III: ABC News is reporting that there will not be a ruling on ObamaCare today. We’ll see.
Update IV: Basically, the Supreme Court decision on SB1070 will allow the stop-and-check provision to take effect, but leave open the possibility that a case showing actual harm could be used to challenge the law at a later date.
Update V: The court will announce its decision on ObamaCare on Thursday — and SCOTUSBlog writes: “From the opinion authorship, health care is almost certainly being written by CJ Roberts, perhaps in part with Justice Kennedy.” That sounds like a big loss for the White House.