Live Thread: SCOTUS hearings on Obamacare [Day 3 Arguments; Post 153+]

National Review ^ | 0/26/2012 | Avik Roy

[BuckeyeTexan]

I will be live-blogging the Supreme Court hearings on the Patient Protection and Affordable Care Act from March 26 to 28, beginning at 10 a.m. on Monday. I invite readers and NRO contributors to chip in with their observations. I will also incorporate Twitter feeds from various people from the health-care and legal worlds who are covering the case.

This is my first time running a live-blog, so my apologies if there are beginners’ technical glitches. See you in this space on Monday!

Audio:
http://www.supremecourt.gov/media/audio/mp3files/11-398-Monday.mp3

Transcript:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Monday.pdf

Windows Media:
http://www.supremecourt.gov/media/audio/wmafiles/11-398-Monday.wma

Real Audio:
http://www.supremecourt.gov/media/audio/realplayerfiles/11-398-Monday.ra

[Typical_Whitey]

If the gvt can compel you to purchase and carry a cell phone than effectively in the future if the HHS decides that microchips under the skin are the most effective way to manage health records and give treatment that too can be mandated..... I don’t think that is going to sit well with alot of Americans.

[chessplayer]

If the SC ok’s this, and they probably will, then we will be living in a full-blown dictatorship.

[alancarp]

SCOTUSblog:
Argument is done. Gov’t has a shot at Kennedy, Alito, and Roberts. But no clear fifth vote. All commerce, no tax power.

sarahkliff:
MT @SCOTUSblog: Update: Paul Clement gave the best argument I’ve ever heard. No real hard questions from the right. Mandate is in trouble.

[Chgogal]

Awesome job! Thank you for your posts and personal comments. You are more generous than I would be. ; )

[alancarp]

ShannonBream: SCOTUS: plenty of q's from J Kennedy - 1st - how does my failure to purchase something make me subject to regulation? Janet Adamy @janetadamy #supremecourt WSJ's Kendall Verrilli shifts to another part of his argument: that insurance mandate is permissible under gov's tax authority janetadamy: #supremecourt WSJ's Kendall: This argument hits resistance. Kagan noted the determined efforts of Congress not to label the penalties a tax. #supremecourt WSJ''s Kendall: Scalia said, The president said it wasn't a tax, didn't he? Garrett Love ‏ @Garrett_Love RT @KansasSitySinic: "Every question Kennedy asked seemed skeptical of the law." -CNN #healthcare #SupremeCourt Avik Roy: latest from SCOTUSblog: A quick update from the steps. Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.

[Chgogal]

What was Paul Clement’s argument, should you have the time?

[alancarp]

Arrgggg.... i'll try that last one again:

SCOTUS: plenty of q's from J Kennedy - 1st - how does my failure to purchase something make me subject to regulation?

Janet Adamy @janetadamy #supremecourt WSJ's Kendall Verrilli shifts to another part of his argument: that insurance mandate is permissible under gov's tax authority

janetadamy: #supremecourt WSJ's Kendall: This argument hits resistance. Kagan noted the determined efforts of Congress not to label the penalties a tax.

#supremecourt WSJ''s Kendall: Scalia said, The president said it wasn't a tax, didn't he?

Garrett Love ‏ @Garrett_Love RT @KansasSitySinic: "Every question Kennedy asked seemed skeptical of the law." -CNN #healthcare #SupremeCourt

Avik Roy: latest from SCOTUSblog: A quick update from the steps. Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.

[Chgogal]

“fter pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.”

Disappointing.

[alancarp]

What was Paul Clement’s argument...?

Unfortunately, I came to the party a little late, and he must have been in there pretty early on.... I don't have that info yet... will start digging now that most of the rancor is now in full swing.

@janetadamy #supremecourt WSJ's Kendall: Kennedy says mandate changes relationship between federal gov and individual citizens in a fundamental way.

Well, here's one exchange:
@janetadamy #supremecourt WSJ's Kendall: Paul Clement for challengers says mandate is unprecedented effort to force people to enter into commerce.

Janet Adamy ‏ @janetadamy #supremecourt WSJ's Kendall: Sotomayor notes challengers have conceded gov could require people to buy insurance at the point of sale.

#supremecourt WSJ's Kendall: Clement responds that not all health care is unpredictable, like routine office visits and preventative care

[chessplayer]

Even if on the outside chance the SC strikes it down, obama and Congress would never accept it. What could the SC do to enforce such a ruling? Absolutely nothing. They don’t have a police force or an army.

[alancarp]

Sounds like that exchange was the highlight for Clement.

[alancarp]

What could the SC do to enforce such a ruling?

Easy: the states would refuse to implement their parts; employers would refuse the mandated changes; insurers would revrt to prior plans. Costs would come back down and the public would be happier.

[goodolemr]

At least the court is skeptical of govt case, and of course, Kennedy has to ride the fence, but what is up with the libs justices trying to make arguments for Obama?

[alancarp]

Okay... apparently session is extended... I got a lot more coming from the tweet world.

[alancarp]

All of these tweets are via:
@janetadamy #supremecourt
They are in chronological order: Paul Clement, speaking against the mandate is up:

WSJ’s Kendall: Kennedy says mandate changes relationship between federal gov and individual citizens in a fundamental way.
WSJ’s Kendall: Paul Clement for challengers says mandate is unprecedented effort to force people to enter into commerce.
WSJ’s Kendall: Sotomayor notes challengers have conceded gov could require people to buy insurance at the point of sale.
WSJ’s Kendall: Clement responds that not all health care is unpredictable, like routine office visits and preventative care
WSJ’s Kendall: Kagan says Clement is quibbling about a matter of timing.
WSJ’s Kendall: Kennedy, who was critical of the gov argument earlier today, jumps in to take issue with the challengers.
WSJ’s Kendall: Kennedy seems to bristle at idea young, healthy people without insurance are beyond regulatory consideration.
WSJ’s Kendall: Kennedy: Such a person is an actuarial reality who can and must be measured.
WSJ’s Kendall: Ginsburg suggests the insurance mandate works much like Social Security.
WSJ’s Kendall: Breyer sends clear signals he believe the insurance mandate is allowed under the Commerce Clause.
WSJ’s Kendall: Clement argues that if the gov can force people to buy insurance, it can force people to buy other products too
WSJ’s Kendall: Roberts says key to the gov’s argument is that everyone is in health-care market, which makes it different
WSJ’s Kendall: Roberts: All the government is trying to do, he said, is regulate how health care is paid for.
WSJ’s Kendall: Clement objects strongly to the notion that every American is a participant in the health-care market
WSJ’s Kendall: Kennedy points out all citizens are in the health market; they are creating a risk that must be accounted for.
WSJ’s Kendall: As Clement ends argument, fairly clear four liberal justices leaning toward support for insurance mandate.
WSJ’s Kendall: Roberts and Kennedy made comments that somewhat tempered criticisms they voiced earlier against federal gov.
WSJ’s Kendall: Scalia and Alito did not make tempering comments. Seems a long shot Verrilli could pick up their votes.
@JessBravin: Clement finished, Michael Carvin stepped up for the challengers to the law.

[Chgogal]

Thank you. :)

[alancarp]

This is most definitely not over.

[alancarp]

All of these tweets are via:
@janetadamy #supremecourt
They are in chronological order: Michael Carvin, also speaking against the mandate is up:

@JessBravin: Clement finished, Michael Carvin stepped up for the challengers to the law.
@JessBravin: Breyer asked if nation was faced with disease epidemic, could it require Americans to get inoculated? Carvin: no.
@JessBravin: Kennedy wavered over claim that line could be drawn between those engaged in commerce and those outside market
@JessBravin: Kennedy: Younger, healthier people law seeks put in risk pool “uniquely proximate’ to affecting insurance rates.
@JessBravin: Carvin said if young and healthy needed insurance, it would be catastrophic care, not comprehensive ACA plans
@JessBravin: Carvin said cost-shifting problem wasn’t caused by uninsured, but rather people who default on medical bills
@JessBravin: Verrilli seized on plaintiffs’ remark that gov could require those seeking care to buy point-of-sale insurance.

>> Personal Comment: Oh, I hope that’s wrong... why would our side say anything like that???
@JessBravin: The argument ended moments after the clock struck noon. See you tomorrow, Chief Justice Roberts said

[Chgogal]

Well!

Listening to Fox Business Channel. Doug Kendall from Constitutional Accountability Center says that at the end of oral arguments, even the conservative judges leaned towards allowing the mandate.

Huh?

[BuckeyeTexan]

Thank you!