Trying to predict Supreme Court decisions from the questions justices ask during oral arguments can be a bit like reading tea leaves. But after three days of grueling questioning by U.S. Supreme Court Justices, this much can be said: the Supreme Court’s conservative block seems to have deep suspicions about the constitutionality of the massive health care overhaul, including swing vote Justice Anthony Kennedy.
The Supreme Court last week analyzed four issues with respect to Obamacare: whether the Anti-Injunction Act would bar a challenge to the individual mandate until it takes effect in 2014; whether the individual mandate is unconstitutional; whether all of Obamacare should be thrown out if the individual mandate is found unconstitutional (severability); and whether Obamacare’s dramatic expansion of Medicaid is an unconstitutional coercion of the states.
This so-called “individual mandate” was subjected to intense scrutiny by the Supreme Court during oral arguments.
“Some of the justices wondered whether the government could compel people to exercise, eat broccoli or buy certain cars if the mandate is upheld,” Fox News reported.
Justice Kennedy said during questioning that the mandate "is different from what we have in previous cases – and that changes the relationship of the federal government to the individual in a very fundamental way."
Of course, Judicial Watch made similar arguments in its amicus curiae brief filed with the Supreme Court on February 13, 2012, specifically using the example of purchasing an automobile to show the ludicrous consequences of allowing this individual mandate to stand:
…the health care market has features that make it unique, so could any market have features that make it unique. Suppose Congress decided to require that every American purchase a Chevy Volt. Such a mandate might seem extreme and politically infeasible, but what if Congress made the argument that without the mandated purchase of the Chevy Volt, given all the regulations applicable to American car manufacturers, without a mandate the American automotive industry would fall apart completely?
Sooner or later, every American ends up needing transportation or at least benefits from the transportation of others, so can Americans as a whole really be said to be not engaging in commerce when they choose not to buy a car? Although the mandated purchase of a Chevy Volt may sound like an extreme imposition on the liberty of American citizens, on what grounds could the Court protect that liberty if such a purchase were designed as an integral part of a comprehensive scheme of economic regulation, perhaps a desire to create a viable national economy in electric cars within a nation that finds electric cars undesirable.
Though proponents of Obamacare might be able to salvage unimportant parts of Obamacare, a majority of the justices seemed willing to gut it, if not throw it out entirely.
According to The Los Angeles Times in its article entitled, “Judges Poised to Strike Down Entire Healthcare Law:”
The Supreme Court's conservative justices said…they are prepared to strike down President Obama’s healthcare law entirely.
Picking up where they left off Tuesday, the conservatives said they thought a decision striking down the law's controversial individual mandate to purchase health insurance means the whole statute should fall with it.
The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.
Justice Scalia countered by jokingly invoking the 8th Amendment against cruel and unusual punishment at the prospect of being forced to read the 2,700-page legislation and decide the merits of the law stipulation by stipulation:
…what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? Or do you expect us to…give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
Can you take out the heart of the Act and leave everything else in place?
(As one commentator points out, Justice Scalia’s comments show that the justices evidently have not yet bothered to read the historic law that they’re now considering!)
In reading the tea leaves of the arguments, I tend to think that the mandate will be struck down and that there’s a good chance that Obamacare will die as a result. Even if there isn’t a majority of the court willing to throw it out in its entirety, related pieces of Obamacare that would go out with the mandate would eviscerate Obamacare. I have no idea how the Medicaid dispute will work out. The Court may not even have to get to that issue if they throw out the mandate, as the Medicaid expansion could necessarily go down with it.
Obamacare supporters are apoplectic at how badly the oral arguments went for their side. What is their plan if Obamacare goes down? Attack the court. (They’re already attacking the Obama Solicitor General who had the difficult job of defending the indefensible before to the Court.) The Washington Post reports the news that the Obama front group, “Know Your Care,” will resort to outrageous personal attacks rather than substantive policy and constitutional arguments:
One liberal group formed to build public support for the law, Protect Your Care, plans to throw out its playbook if the justices rule against the administration. Instead of promoting the popular provisions in the law, the group would devote its time in the fall to going negative on the court itself — painting the conservative justices as partisan ideologues who robbed Americans of needed benefits. The messages would be aimed at seniors who might lose prescription drug benefits and young people who might lose access to their parents’ health insurance plans.
Of course, last week’s embarrassing spectacle of the liberal justices and government lawyers haplessly trying to defend Obamacare with appeals to emotion rather than to the Constitution will be ignored by all the president’s men. Also ignored is the cloud over the High Court resulting from the still-unexplained participation of Obama appointee Justice Elena Kagan in the consideration of a law that she may have worked on (and supported) when she was in the Obama Department of Justice.
You can listen to the Obamacare arguments or read their transcripts here and draw your own conclusions. I think you’ll see that the opponents of Obamacare seemed actually to wrestle with some of the difficult legal questions.
The Supreme Court is expected to rule by the end of June. In the meantime, your Judicial Watch will work to expose and will fight the attempts of President Obama and his “gangster government” allies to undermine the rule of law by unfairly attacking the integrity of the Supreme Court.