Remember yesterday, when pretty much every legal expert agreed the Supreme Court wouldn't strike down the Affordable Care Act? When those who watch the high court closely explained it would take a radical departure from a century's worth of precedent for the Obama administration to lose this case?
As of this afternoon, no one's saying that anymore.
Here's NBC's Pete Williams reporting from the Supreme Court, arguing that it's "very doubtful" a majority of the justices will uphold the law.
To be sure, I wasn't in the room, so I can't speak to this morning's arguments in any real detail. What's more, it's always worth remembering that court watchers look to these arguments for hints, but there are no guarantees that justices who appeared to be leaning in one direction or another will necessarily rule that way.
Those caveats notwithstanding, I had conversations this afternoon with a few reporters who were in the Supreme Court for the arguments, and they agreed on several key points:
* The mandate has at least four votes (Ginsburg, Breyer*, Sotomayor, and Kagan).
* Solicitor General Don Verrilli, who argued the case for the government, was not at the top of his game today, and the word "choke" is being bandied about quite a bit.
* Paul Clement, the former Solicitor General who argued against the health care, was excellent.
* The two votes to watch are Roberts and Kennedy. Scalia, Thomas, and Alito do not appear to be in play, despite all of Scalia's previous opinions on Commerce Clause jurisprudence.
* The liberal justices were far more effective than Verrilli in making compelling arguments in defense of the law.
Lyle Denniston, whose work covering the Supreme Court is second to none, had a worthwhile item, noting, "If Justice Anthony M. Kennedy can locate a limiting principle in the federal government's defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone. That is where Tuesday's argument wound up -- with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate's savior."
For those brave souls who want to listen to all of this morning's proceedings, the Supreme Court has posted the audio clips online.
*fixed
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Lyle Denniston, whose work covering the Supreme Court is second to none,
I believe you meant "is second only to Dahlia Lithwick". :)
As an attorney, I like the idea that who argues the case and how they do it is really important. Good for my ego. But as a citizen, I find rather disturbing that an issue of national importance, and after a half-dozen lower court decisions and literally thousands of pages of written briefs from parties and amici and in the official record of the case, could come down to whether Clement was on his game and Verrilli had an off morning.
This is a good point. As one who served as clerk on an appellate court, I would vouch that for the most part the oral arguments are the least important factor in deciding a case. Far, far, far more time is spent scrutinizing briefs, response briefs, reply briefs, surreply briefs, lower court opinions, other court opinions, etc. etc. etc.
And if you are really ate up with the Geek, C-Span 3 is running the whole arguments right now (2:00pm ET).
Started just a bit ago -- and Tony "Crispy Crust" Scalia has already brought up Broccoli. :)
History shows that John Adams supported a strong Federal role in health care.
From Greg Sargent at "The Plum Line,"
http://voices.washingtonpost.com/plum-line/2011/01/founding_fathers_favored_gover.html :
"Newsflash: Founders favored 'government run health care' "
"It is fair to conclude," [Adam Rothman, an associated professor of history at Georgetown University] says, "that the founding generation supported the basic idea of government run health care, and the use of mandatory taxation to pay for it."
"It's a good example that the post-revolutionary generation clearly thought that the national government had a role in subsidizing health care," Rothman says.
From Rick Ungar at Forbes,
http://www.forbes.com/sites/rickungar/2011/01/17/congress-passes-socialized-medicine-and-mandates-health-insurance-in-1798/print/ :
"In July of 1798, Congress passed – and President John Adams signed - “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
"Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.
"And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind."
from npr
After Clement finished his arguments , SCOTUSblog's Tom Goldstein left the courtroom to file an update, saying, "The individual mandate is in trouble — significant trouble. It's too early to tell whether it will be struck down."
Still, it's clear that the court's conservative justices are "quite skeptical." And Goldstein said, "Paul Clement gave the best argument of any kind that I've ever heard."
Partitioning Signed Two-Mode Networks (2009): Journal of Mathematical Sociology, 33: 196-221 by Andrej Mrvar and Patrick Doreian offers a fascinating analysis of political polarisation in the Supreme Court, that is rather unsettling.
(http://patrickdoreian.com/pdf/partitioning%20signed%20two%20mode%20networks.pdf)
The idea that the case will be decided based on who was more impressive in oral arguments is preposterous and betrays a total ignorance of how appellate practice works. This case, like nearly every other case in the history of the Supreme Court, will be decided on the briefs, and the only purpose for oral arguments (beyond allowing a lot of fairly pompous lawyers the opportunity to grandstand) is to explicate issues raised by the briefs but not fully fleshed out. That said, I said on the day Obama signed the ACA that it would come down to how Kennedy felt that day and I stand by that. If Kennedy feels the mandate power can be limited to health care, he will uphold. If not, he will strike down. Mostly likely, a 5-4 opinion, though it's possible that the crass bastard John Roberts will join a majority upholding the law just so he can write the opinion himself and narrow its scope. Rehnquist used to do that with outcomes he didn't like.
The best advocate for either position is one of the Justices and they have access to one another all of the time. If kennedy wants to hear a limiting principle, just ask the four judges inclined to uphold the mandate. The limiting principle is simple: inactivity in this particular market will nearly always manifest itself as "significant" activity in the market at a later date. The government is protecting the operation of the health care market by reducing the significant later activity by requiring either premiums or a "tax." It is not that hard a principle to grasp.
@ejd47, excellent. I tweeted part of that.
Roberts' vote isn't "in play." He's a reliable Republican, who primarily pays attention to what his party wants.
Just pay attention to what Anthony Kennedy says. He's going to decide this case.
If Court strikes down, Repubs have one less wedge issue to run on.
Thomas's wife is Tea Party, but is a lobbyist being paid by the insurers, the insurers want this mandated windfall. So Thomas is in. Same for Scalia, you just feel dirty looking at this guy. He is getting kickbacks you can feel it.
Don't tell me, public option time?
A public option does not guarantee universal coverage; it only provides cheap insurance. The Republicans and insurance companies will fight the public option because the private companies would lose a lot of their customers. The issue of universal coverage is the problem. People without jobs or sufficient income can get Medicaid. But there still is a large group of uninsured people who will not buy insurance for many reasons beside cost. That is where a Medicare for all moves us to universal coverage. It would mean increasing Medicare deductions so that everyone has a minimum medical coverage.
And what happens if the Court strikes down the individual mandate but leaves the constraints (e.g. no pre-existing condition clauses) in place? The Constitutionality of those is pretty solid, and that's a nightmare scenario for the insurers.
The insurance companies are gambling that the court will throw out the whole law. It won't because the mandate can be struck down without affecting the other provisions. That leaves the insurance companies paying for things that are proscribed by the law, eg. the 85% rule for medical treatment, pre-existing conditions and no lifetime money ceiling. Now the insurance companies will need the Republicans to repeal the rest of the law. That may not be possible with another divided Congress and/or a Senate that is not filibuster proof. In other words, the insurance companies are screwed so premiums are going to reflect these new obligations. It is difficult for actuarial tables to estimate the potential medicals costs with some of these new obligations so premiums will likely continue to rise.
That scenario leads to the next health care plan that is proposed which won't happen until voters get really angry about the system. Medicare for all as well as a public option may be the next steps. But it will have to be done incrementally because of public opinion. Only the public option may be feasible in the near future if Dems can control Congress, but I doubt it will happen under Obama unless it is part of the Medicare overhaul.
The big issue beside the mandate is the Medicaid obligations that are now imposed on states because of this law. There are states that want this part overturned because they will have to start covering more people and there will be minimum standards for all of Medicare. This will cost some states a lot of money and that is why the Republican AG and governors are challenging the bill. Some states will now have to raise taxes to pay for their share. And some of these states would prefer not to provide Medicaid nor an alternative state medical program.
Ah yes, the otherwise-unemployables of the MSM are shrieking that the sky is falling. If you go over to TPM, their reporter, who actually PAID ATTENTION TO DETAIL points out that both Kennedy and Roberts were completely unpersuaded by the unconstitutionality argument regarding the mandate, from their questions of Clement.
This packed conservative court must understand that health care is a basic inalienable right for every single American. The president put everything on the line to push an imperfect solution to the burgeoning crisis of uninsured Americans with a health care reform package that promised to expand coverage and access to affordable care. Any step backwards in this fight is unacceptable. The 51 million uninsured in this country need be provided with basic insurance and medical care, not left to die or at the mercy of profit-mad insurers. http://www.sunstateactivist.org
amen!
If only that were true. Conservatives do not believe that healthcare is an inalienable right. They don't believe anything that benefits people is good. Only if it benefits corporate benefactors. Which this does, so it might actually make it through.
We need something now. If it's this, fine. If it leads to single payer later, even better.
Much as I wish it were true, medical care is NOT a right of every American. You may have a right to be treated in case of an emergency, but that's not the same thing as true, ongoing, medical care.
Unlike most developed nations, that isn't a part of our national ethic.
At this point it is apparent that the whole system is so corrupt and broken I can't get myself worked up about it . I had to turn off the TEE VEE at lunch (MSNBC) because I couldn't take any more PunditSpec on what the Supremes may or may not do . The only people in this country who are against the ACA are people who are already insured and it wouldn't affect anyway. America too effin stupid for democracy. Kudos to Murdoch and Ailes , you have in fact reduced the national IQ.
If they rule against the mandate,will we still have to buy broccolli? States mandate auto insurance.So will it be ok for state governments to make you buy broccolli,but not the federal government?What the hell is the difference?
They will argue the difference is given in the 10th amendment.
That would be cool -- it's been forever since the Court actually based a ruling on the Tenth. It's mostly treated as a dead letter.
i do not have to have a car if i cant pay insurance i have to turn in the plates driving is not a right but a privilege . we have rights to life and happiness . by your reasoning we should only provide roads to those with road insurance. if the government wants all to eat broccoli then the government can release the broccoli reserves to every household! ( paid for by taxes levies and fines)
Seeing the reactions to today's arguments, I keep reminding myself of Scott Brown's election to Ted Kennedy's Senate seat, and the panicked reactions from so many of the ACA's supporters: "that's it, it's over, time to give up on passing this law." I remember being gobsmacked at seeing Barney Frank on TV basically saying it was time to just throw in the towel. Of course we're all desperately searching for hints & clues but if the decision is largely in Kennedy's hands, isn't that what was always the most likely outcome anyway?
Great interview on Fresh Air by Rachel today. I learned much more about the young lady I watch on TV everyday.
I was listening to the arguments for the opposition to the ACA and, if i understood them correctly, seems to place in jeopardy much of the so-called "free market" solutions espoused by the Republicans for a universe of issues; from education to healthcare.
Well, FWIW, here's my take, as a (small potatos) appellate lawyer. A) those trying to determine who won by comparing the performances of Clement and the Solicitor General don't know what they're talking about. That's not what really counts; B) Roberts is by no means a lost cause; C) while Carvin, who argued last, did not fall into the kind of stumbling answers that made the Solicitor General look so bad, the substance of his answers hit a lot of notes that will trouble justices who might otherwise have been leaning towards overturning the law (i.e., he did his cause some damage without even realizing it); and, most important D) I think Kennedy will come around to upholding the law.
This response of Kennedy's, from page 100, while Carvin was arguing, is particularly telling:
JUSTICE KENNEDY: "And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets – 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."
What I see him saying here is this: opponents are advancing a slippery slope argument (e.g., broccoli). And they're not entirely wrong: there is no obvious, clear distinction. But that's an issue for another day: we are at one extreme of the spectrum, and the Gov't is correct that the young person who is uninsured and does not feel a need to be insured at this time is a problem that must be addressed in order reasonably regulate health care and health insurance. So we'll decide this case on its merits (and uphold the law), and we'll deal with the slippery slope argument when, and if, we start sliding down the slope.
YMMV, but that's how I read that.
Nicely put. Thank you for your interpretation on Kennedy.
as a lawyer you should notice that health insurance does not provide any care at all. if the government places the burden of care on a hospital it should provide a means of paying for it supported by taxes not mandated profits from a captive market. its bad enough being a cash cow in the doctors office . tax me more but give me something for it . thats how you distribute responsibility .(argument assumes a fair compensation schedule has been established by the single payer.
The broccoli argument is a red herring. First not all persons can eat broccoli. Some may have a food allergy of some sort. Besides no matter how much broccoli you eat or how much you exercise you will still have to use the medical system at some point. You will sooner or later still get sick or you may have an accident. The problem is that we do not know when we will get ill or have an accident. That is why even young and apparently, at least for now, healthy people still should have medical insurance.
the argument before the courts is spurious . assuming health care is provided in any way by insurance is a misdirection . Doctors provide care and should be fairly paid . the insurance insdustry has a captive market and adds 30 % to the actual costs of care . this 30% burdens not only individuals bur schools municipalities and states that have to shell out retirement benefits . HaRTFORD IS BANKRUPTING OUR TOWNS.As a tax payer i have no problem with paying more taxes if i get in return basic health care for them . paying taxes to fill holes in teeth instead of blowing holes in sand is fine with me . plus the 2% fine levied by the federal government will probably be in addition to the padded bill the collection agencies are chasing poor people with, ruining their credit and attaching bank accounts for the "free" care they received. it is no accident that the vote that killed the single payer option was Joe lieberman .we need health reform we need the government to do it and we need to find reaal jobs for the insurance companies. a good example of true free market with out insurance are lasix eye surgery and dental implants. doctors compete for customers and prices went down . where the insurance is the customer the incentive is to milk the deep pocket mercilessly. a single payer option with a fair fee structure is the only thing that can work . for that reason i hope the courts strike this down. A tax on everyone to pay for this is the fairest way to distribute the costs period. i can take my car off the road where do i go to stop walking erect? why not swap your insurance bill for a little more income tax (the people in hartford will tell you it will kill your grandma don't believe them)
If all that money is going to Hartford, maybe they can get the Whalers back. :)
Let's just hope the court decides to gut Obamacare, and we can rid ourselves of this disaster! Our government is broke, and we need to stop spending! Why can't we just cut all budgets from each previous year by 1%? We will eventually stop the deficits and eventually pay off our debt. Just askin'
The government is not broke. Obamacare reduces the debt. And you're just a freaking idiot repeating right wing nut lies.
But good job. You parrot well.
You are kidding, MsJonne,"Obamacare reduces the debt?" How can paying for citizens healthcare save money? Someone is good at repeating lies, paying for healthcare would save money makes about as much sense as your, "The government is not broke." Just sayin'
lets look at our current system . you make an appointment and land in a room with 25 other people after giving insurance information and waiting 45 minutes your landed in a room where a person(possibly a nurse) takes some measurements and then a doctor pops his head in checks to see if your pink and orders some tests . the tests come from labs he owns outright or has a partnership in. most tests protect him from lawyers if there is a cold going around he has to be sure its not beri beri . the insurance companies knowing how much is in the doctors pocket (they put it there) milk him out of high malpractice fees even though malpractice awards have been going down) the lawyers are there to make sure the doctor is a pure statistician and allow no "practice" of the "art " doctors complain about the malpractice and milk the insurance insurance raises the premium on the cash cow quietly chewing his cud in the waiting room and paying his premiums glad he does not have to foot the padded bill . i maintain it is to the advantage of the insurance companies to have spiraling costs because they take 30 precent of it anyway. put the patient in charge of the fee and everything changes just look in the paper what happens when a lot of eye doctors buy lasix machines and need customers to pay down the financing. what happened to 5000 an eye? insurance would not pay for it thats what happened
ps Captain america enjoy your veterans benefits gi bill and PX priv. drive around in a bradley for a while and talk to me again about saving money
This is totally unlike mandating that people eat broccoli. If people don't eat broccoli, it doesn't cost more money for those those who do, in fact it will probably cost less.
If you choose not to have health insurance, it WILL cost me more. Therefore, you are making a personal choice to have me and others pay for your healthcare, which clearly affects interstate commerce.
By this logic, I could refuse to buy car insurance and have you pay for my future accidents.