Call it The Faceplant Heard ‘Round The Nation. CNN legal analyst Jeffrey Toobin, who had earlier predicted that the Supreme Court would uphold the individual mandate, called the first half of oral arguments on the issue “a train wreck for the Obama administration,” and openly predicted that the court would overturn at least that part of ObamaCare:
The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.
Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.
According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”
“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.
Toobin questioned the preparation of Obama administration Solicitor General Donald Verilli, saying he was “not ready” to answer questions on the mandate:
Toobin added that he felt that U.S. Solicitor General David Verrilli simply wasn’t prepared for the conservative justices.
“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”
Toobin also said that Anthony Kennedy looked like a “lost cause” for mandate supporters. CBS’ Jan Crawford tweeted out Kennedy’s comments during the arguments:
KENNEDY: Health care law “changes the relationship between the individual and the government in a very fundamental way.”
KENNEDY: Can you “create” commerce in order to regulate it? Suggests govt has “heavy burden” in health care case.
Crawford also reported heavy skepticism during oral arguments, noting that a majority appeared “[t]roubled there would be no limits on Congressional power.”
We’ll update this as we get video and more reaction. At the moment, though, the White House has to be less than pleased.
Update: The Hill also notes Kennedy’s skepticism. The report also concludes that the four liberal justices seemed ready to support the mandate:
Tom Goldstein, the author of a popular Scotus Supreme Court blog, offered a mid-argument update in which he said there was no fifth vote yet in favor of or against the mandate.
He wrote that the four more liberal justices on the court appeared to be in favor of the mandate, while conservatives were expressing skepticism.
In other words … 5-4, here we come.
Update II: Here’s the video from TPM:
Update III: My column today for The Week looks at the political implications of the possible outcomes of the Supreme Court decision on ObamaCare. Here are my predictions for two cases, updated moments ago:
3. Overturn the individual mandate alone
Easily the most unpopular part of the bill, the individual mandate, which requires Americans to obtain health insurance, is also the most constitutionally fraught. It’s also the financial linchpin of ObamaCare. Without it, the insurers who gave qualified support for the PPACA would go broke, thanks to additional must-insure mandates and an abolition of bars on pre-existing conditions. Given the already-expressed skepticism from Breyer and Ginsburg about the argument that the mandate is a tax, the real possibility exists that the court may strike this down, and not just on a 5-4 vote. During Tuesday’s argument, swing justice Anthony Kennedy was “enormously skeptical” of the individual mandate, as CNN’s Jeffrey Toobin put it. Indeed, the punditocracy’s instant analysis suggests the mandate is not long for this world. …
4. Overturn the entire bill
Two lower courts split on the question of whether a lack of a severability clause in the PPACA meant that Congress intended the bill to be an all-or-nothing proposition. If the court determines that one or more of the components are unconstitutional — especially the central individual mandate — and that Congress deliberately chose not to include a severability clause, then the court could throw out the entire PPACA.
If the court strikes down the mandate on a 5-4 split and/or throws out the whole bill, mandate advocates could argue that the court took a political rather than legal position. But that won’t convince anyone except the true believers. With a majority of people already opposed to the individual mandate, it would only deepen their impression of ObamaCare as a radical departure, and make it even less likely that Obama could fashion a way to salvage the framework of his reform — even if House Republicans were inclined to help Obama escape from the trap. If one or more of the liberal justices join in declaring the mandate and/or the entire bill unconstitutional, then the PPACA becomes an albatross around Obama’s neck, and also those Democrats in the Senate running for re-election.
Update IV: There’s more consensus on both the direction of the court today and the performance of Verilli, mainly from the Left:
Jamie Dupree, reporter for Cox Radio, tweeted, “One thing was clear, the Solicitor General [Donald B. Verrilli Jr.] (arguing for the Obama Administration) had a bad day in court.” Justice Kennedy asked him the seemingly skeptical question, “Can you create commerce in order to regulate it?”
“Essentially, the Solicitor General’s performance was so abysmal that it fell to the [Democratic] appointees to make his argument for him,” says Adam Serwer, reporter for Mother Jones.
Update V: The Solicitor General’s name is Donald Verilli, not David Verelli. I’ve fixed it above.